UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

For the quarterly period ended June 30, 2018

OR

For the transition period from                          to                         

Commission file number 001-32559

Commission file number 333-177186

 

MEDICAL PROPERTIES TRUST, INC.

MPT OPERATING PARTNERSHIP, L.P.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

REGISTRANT’S TELEPHONE NUMBER, INCLUDING AREA CODE: (205) 969-3755

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  ☒    No  ☐

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  ☒    No  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ☐    No  ☒

As of August 3, 2018, Medical Properties Trust, Inc. had 364,858,202 shares of common stock, par value $0.001, outstanding.

 

 

---

 

EXPLANATORY NOTE

This report combines the Quarterly Reports on Form 10-Q for the three and six months ended June 30, 2018 of Medical Properties Trust, Inc., a Maryland corporation, and MPT Operating Partnership, L.P., a Delaware limited partnership, through which Medical Properties Trust, Inc. conducts substantially all of its operations. Unless otherwise indicated or unless the context requires otherwise, all references in this report to “we,” “us,” “our,” “our company,” “Medical Properties,” “MPT,” or “the company” refer to Medical Properties Trust, Inc. together with its consolidated subsidiaries, including MPT Operating Partnership, L.P. Unless otherwise indicated or unless the context requires otherwise, all references to “our operating partnership” or “the operating partnership” refer to MPT Operating Partnership, L.P. together with its consolidated subsidiaries.

 

 

 

---

 

MEDICAL PROPERTIES TRUST, INC. AND MPT OPERATING PARTNERSHIP, L.P.

AND SUBSIDIARIES

QUARTERLY REPORT ON FORM 10-Q

FOR THE QUARTERLY PERIOD ENDED June 30, 2018

Table of Contents

 

 

2

---

 

PART I — FINANCIAL INFORMATION

Item 1. Financial Statements.

MEDICAL PROPERTIES TRUST, INC. AND SUBSIDIARIES

Condensed Consolidated Balance Sheets

 

 

See accompanying notes to condensed consolidated financial statements.

3

---

 

MEDICAL PROPERTIES TRUST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Net Income

(Unaudited)

 

 

See accompanying notes to condensed consolidated financial statements.

4

---

 

MEDICAL PROPERTIES TRUST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Comprehensive Income

(Unaudited)

 

 

See accompanying notes to condensed consolidated financial statements.

5

---

 

MEDICAL PROPERTIES TRUST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Cash Flows

(Unaudited)

 

 

See accompanying notes to condensed consolidated financial statements.

6

---

 

MPT OPERATING PARTNERSHIP, L.P. AND SUBSIDIARIES

Condensed Consolidated Balance Sheets

 

 

See accompanying notes to condensed consolidated financial statements.

7

---

 

MPT OPERATING PARTNERSHIP, L.P. AND SUBSIDIARIES

Condensed Consolidated Statements of Net Income

(Unaudited)

 

 

See accompanying notes to condensed consolidated financial statements.

8

---

 

MPT OPERATING PARTNERSHIP, L.P. AND SUBSIDIARIES

Condensed Consolidated Statements of Comprehensive Income

(Unaudited)

 

 

See accompanying notes to condensed consolidated financial statements.

9

---

 

MPT OPERATING PARTNERSHIP, L.P. AND SUBSIDIARIES

Condensed Consolidated Statements of Cash Flows

(Unaudited)

 

 

See accompanying notes to condensed consolidated financial statements.

10

---

 

MEDICAL PROPERTIES TRUST, INC. AND MPT OPERATING PARTNERSHIP, L.P.

AND SUBSIDIARIES

Notes to Condensed Consolidated Financial Statements

(Unaudited)

1. Organization

Medical Properties Trust, Inc., a Maryland corporation, was formed on August 27, 2003, under the Maryland General Corporation Law for the purpose of engaging in the business of investing in, owning, and leasing commercial real estate. Our operating partnership subsidiary, MPT Operating Partnership, L.P., (the “Operating Partnership”) through which we conduct all of our operations, was formed in September 2003. Through another wholly-owned subsidiary, Medical Properties Trust, LLC, we are the sole general partner of the Operating Partnership. At present, we directly own substantially all of the limited partnership interests in the Operating Partnership and have elected to report our required disclosures and that of the Operating Partnership on a combined basis except where material differences exist.

We have operated as a real estate investment trust (“REIT”) since 2004. Accordingly, we will generally not be subject to federal income tax in the United States (“U.S.”), provided that we continue to qualify as a REIT and our distributions to our stockholders equal or exceed our taxable income. Certain non-real estate activities we undertake are conducted by entities which we elected to be treated as taxable REIT subsidiaries (“TRS”). Our TRS entities are subject to both U.S. federal and state income taxes. For our properties located outside the U.S., we are subject to local taxes; however, we do not expect to incur additional taxes in the U.S. as such real estate related income flows through our REIT.

Our primary business strategy is to acquire and develop real estate and improvements, primarily for long-term lease to providers of healthcare services such as operators of general acute care hospitals, inpatient physical rehabilitation hospitals, long-term acute care hospitals, surgery centers, centers for treatment of specific conditions such as cardiac, pulmonary, cancer, and neurological hospitals, and other healthcare-oriented facilities. We also make mortgage and other loans to operators of similar facilities. In addition, we may obtain profits or equity interests in our tenants, from time to time, in order to enhance our overall return. We manage our business as a single business segment. Our properties are located in the U.S. and Europe.

2. Summary of Significant Accounting Policies

Unaudited Interim Condensed Consolidated Financial Statements: The accompanying unaudited interim condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the U.S. for interim financial information, including rules and regulations of the Securities and Exchange Commission (“SEC”). Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles (“GAAP”) for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the three and six months ended June 30, 2018, are not necessarily indicative of the results that may be expected for the year ending December 31, 2018. The condensed consolidated balance sheet at December 31, 2017 has been derived from the audited financial statements at that date but does not include all of the information and footnotes required by accounting principles generally accepted in the U.S. for complete financial statements.

For information about significant accounting policies, refer to the consolidated financial statements and footnotes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2017, and as updated in our Form 10-Q for the quarter ended March 31, 2018. There have been no material changes to these significant accounting policies other than the following:

On July 1, 2018, we early adopted Accounting Standards Update (“ASU”) No. 2018-07, “Compensation-Stock Compensation.” Under the new standard, non-employee stock awards are to be accounted for similar to employee stock awards. This standard simplifies the accounting for non-employee stock awards, including fixing the value of the stock award at date of grant.  The adoption of this standard did not have a material impact on our financial statements.

Recent Accounting Developments:

Leases

In February 2016, the Financial Accounting Board (the “FASB”) issued ASU 2016-02, “Leases”, which sets out the principles for the recognition, measurement, presentation and disclosure of leases for both parties to a contract (i.e. lessees and lessors). The new standard requires lessees to apply a dual approach, classifying leases as either financing or operating leases based on the principle of whether or not the lease is effectively a financed purchase by the lessee. This classification will determine whether lease expense is recognized based on an effective interest method or on a straight-line basis over the term of the lease. A lessee is also required to record a right-of-use asset and a lease liability for all leases with a term greater than 12 months regardless of their classification. Leases with a term of 12 months or less will be accounted for similar to existing guidance for operating leases today. The new standard requires lessors to account for leases using an approach that is substantially equivalent to existing guidance for sales-type leases, direct financing leases

11

---

 

and operating leases.  In July 2018, the FASB issued ASU 2018-11, “Leases (Topic 842): Targeted Improvements” (“ASU 2018-11”), allowing companies to record a cumulative adjustment to retained earnings in the period of adoption rather than requiring the restatement of prior periods.

We plan to adopt ASU 2016-02 on January 1, 2019, along with ASU 2018-11. We are continuing to evaluate this standard and the impact to us from both a lessor and lessee perspective. We do have leases in which we are the lessee, including ground leases, on which certain of our facilities reside, along with corporate office and equipment leases.  Although we do not expect any change in the current classification of these leases, we will record a right-of-use asset and a lease liability on our balance sheet upon adoption of this standard, with any difference recorded as a cumulative adjustment in equity. From a lessor perspective, we do not expect any change in the current classification and accounting of our existing leases.  However, we do expect certain non-lease components (including certain operating expenses that the tenants of our facilities are required to pay pursuant to our “triple-net” leases) to be recorded gross versus net of the respective expenses upon adoption of this standard in 2019 in accordance with ASU No. 2014-09.

Reclassifications

Certain amounts in the consolidated financial statements for prior periods have been reclassified to conform to the current period presentation.

Variable Interest Entities

At June 30, 2018, we had loans to and/or equity investments in certain variable interest entities (“VIEs”), which are also tenants of our facilities. We have determined that we are not the primary beneficiary of these VIEs. The carrying value and classification of the related assets and maximum exposure to loss as a result of our involvement with these VIEs are presented below at June 30, 2018 (in thousands):

 

 

For the VIE types above, we do not consolidate the VIE because we do not have the ability to control the activities (such as the day-to-day healthcare operations of our borrowers or investees) that most significantly impact the VIE’s economic performance. As of June 30, 2018, we were not required to provide financial support through a liquidity arrangement or otherwise to our unconsolidated VIEs, including circumstances in which they could be exposed to further losses (e.g., cash short falls).

Typically, our loans are collateralized by assets of the borrower (some assets of which are on the premises of facilities owned by us) and further supported by limited guarantees made by certain principals of the borrower.

See Note 3 and Note 7 for additional description of the nature, purpose and activities of our more significant VIEs (such as Ernest Health Inc. (“Ernest”)) and interests therein.

12

---

 

3. Real Estate and Lending Activities

Acquisitions

We acquired the following assets (in thousands)

 

 

2018 Activity

On June 27, 2018, we acquired the fee simple real estate of two general acute care hospitals in Massachusetts from Steward in exchange for the reduction of $259.4 million of mortgage loans made to Steward in October 2016, along with an additional $14.4 million in cash consideration. These properties are being leased to Steward pursuant to the original master lease from October 2016 that has a 15-year term with three five-year extension options, plus consumer-price indexed increases.

2017 Activity

 

MEDIAN Transactions

On June 22, 2017, we acquired an acute care hospital in Germany for a purchase price of €19.4 million. This property is leased to affiliates of Median Kliniken S.à.r.l. (“MEDIAN”), pursuant to the original master lease agreement effective in 2015 and expiring December 2042 with annual escalators at the greater of one percent or 70% of the change in German CPI.

During the second quarter of 2017, we acquired 11 rehabilitation hospitals in Germany for an aggregate purchase price of €127 million. These 11 properties are leased to affiliates of MEDIAN, pursuant to a third master lease that has terms similar to the original master lease in 2015 with a fixed 27-year lease term ending in August 2043. These acquisitions are part of the portfolio of 20 properties in Germany that we agreed to acquire in July 2016 for €215.7 million, of which seven properties totaling €49.5 million closed in December 2016. The final two properties closed post June 30, 2017 for a purchase price of €39.2 million.

On January 30, 2017, we acquired an inpatient rehabilitation hospital in Germany for €8.4 million. This acquisition was the final property to close as part of the six hospital portfolio that we agreed to buy in September 2016 for an aggregate amount of €44.1 million.  This property is leased to affiliates of MEDIAN, pursuant to the original long-term master lease agreement reached with MEDIAN in 2015 and as described above.

Other Transactions

On June 1, 2017, we acquired the real estate assets of Ohio Valley Medical Center, a 218-bed acute care hospital located in Wheeling, West Virginia, and the East Ohio Regional Hospital, a 139-bed acute care hospital in Martins Ferry, Ohio, from Ohio Valley Health Services, a not-for-profit entity in West Virginia, for an aggregate purchase price of approximately $40 million. We simultaneously leased the facilities to Alecto Healthcare Services LLC (“Alecto”), pursuant to a lease with a 15-year initial term with 2% annual minimum rent increases and three 5-year extension options. The facilities are cross-defaulted and cross-collateralized with our other hospitals operated by Alecto. We also agreed to provide up to $20.0 million in capital improvement funding on these two facilities - none of which has been funded to date. With these acquisitions, we also obtained a 20% interest in the operator of these facilities.

13

---

 

On May 1, 2017, we acquired eight hospitals previously affiliated with Community Health Systems, Inc. in Florida, Ohio, and Pennsylvania for an aggregate purchase price of $301.3 million. These facilities are leased to Steward, pursuant to the existing long-term master lease entered into with Steward in October 2016 and as described above.

On May 1, 2017, we also acquired the real estate of St. Joseph Regional Medical Center, a 145-bed acute care hospital in Lewiston, Idaho for $87.5 million. This facility is leased to RCCH Healthcare Partners (“RCCH”), pursuant to the existing long-term master lease entered into with RCCH in April 2016.

From the respective acquisition dates, the properties acquired in 2017 contributed $8.2 million of revenue and $6.0 million of income (excluding related acquisition expenses and taxes) for the three months ended June 30, 2017, and $8.4 million of revenue and $6.1 million of income (excluding related acquisition expenses and taxes) for the six months ended June 30, 2017. In addition, we expensed $9.1 million and $9.6 million of acquisition-related costs on these 2017 acquisitions for the three and six months ended June 30, 2017, respectively.

Development Activities

During the first six months of 2018, we completed construction on Ernest Flagstaff. This $25.5 million inpatient rehabilitation facility located in Flagstaff, Arizona opened on March 1, 2018 and is being leased to Ernest pursuant to a stand-alone lease, with terms generally similar to the original master lease.

 

See table below for a status update on our current development projects (in thousands):

 

 

Disposals

2018 Activity

Joint Venture Transaction

On June 7, 2018, we entered into a subscription agreement with Primotop Holdings S.à.r.l. (“Primotop”), an entity managed by Primonial Group, pursuant to which Primotop will acquire a 50% interest by way of a joint venture in the real estate of 71 post-acute hospitals in Germany that we currently own, with an aggregate agreed valuation of approximately €1.635 billion.  The remaining 50% interest in the joint venture will be retained by us.  Immediately following the closing, which is expected to occur during the third quarter of 2018, the joint venture is expected to make cash distributions to us in an aggregate amount of approximately €1.14 billion from the proceeds of the cash contributions from Primotop and certain secured debt financings within the joint venture. In preparation of this joint venture, we issued such secured debt on these properties on August 3, 2018, resulting in gross proceeds of €655 million.  At June 30, 2018, the 71 facilities subject to the joint venture were designated as held for sale and included the following net assets (in thousands):

 

 

14

---

 

Other Transactions

On June 4, 2018, we sold three long-term acute care hospitals located in California, Texas, and Oregon, that were leased and operated by Vibra Healthcare, LLC (“Vibra”), which included our equity investment in operations of the Texas facility. Total proceeds from the transaction were $53.3 million in cash, a mortgage loan in the amount of $18.3 million, and a $1.5 million working capital loan.  The transaction resulted in a gain on real estate of $24.2 million, which was partially offset by a $5.1 million non-cash charge to revenue to write-off related straight-line rent receivables.

On March 1, 2018, we sold the real estate of St. Joseph Medical Center in Houston, Texas, for approximately $148 million to Steward. In return, we received a mortgage loan equal to the purchase price, with such loan secured by the underlying real estate. The mortgage loan has terms consistent with the other mortgage loans in the Steward portfolio. This transaction resulted in a gain of $1.5 million, offset by a $1.7 million non-cash charge to revenue to write-off related straight-line rent receivables on this property.

2017 Activity

On March 31, 2017, we sold the EASTAR Health System real estate located in Muskogee, Oklahoma, which was leased to RCCH. Total proceeds from this transaction were approximately $64 million resulting in a gain of $7.4 million, partially offset by a $0.6 million non-cash charge to revenue to write-off related straight-line rent receivables on this property.

 

Summary of Operations for Disposed Assets in 2018

The properties sold during 2018 and the assets held for sale (from the Joint Venture Transaction) at June 30, 2018, do not meet the definition of discontinued operations.  However, the following represents the operating results (excluding gain on sale and any non-cash charges such as straight-line rent write-offs) from these properties (excluding the St. Joseph sale which was converted to a mortgage loan) for the periods presented (in thousands):

 

As noted previously, we will retain a 50% interest in the Joint Venture Transaction; however, such interest has not been factored into the summary of operations above.

Leasing Operations

At June 30, 2018, leases on 14 Ernest facilities, ten Prime Healthcare Services, Inc. (“Prime”) facilities, and two Alecto facilities are accounted for as direct financing leases (“DFLs”). The components of our net investment in DFLs consisted of the following (in thousands):

 

 

 

On March 15, 2018, we entered into a new lease agreement of our long-term acute care facility in Boise, Idaho (the “Boise Lease”) with a joint venture formed by Vibra and Ernest. The new lease has an initial 15-year fixed term (ending March 2033) with three extension options of five years each. With this transaction, we incurred a non-cash charge of $1.5 million to write-off DFL unbilled interest associated with the previous lease to Ernest on this property.

Adeptus Health

As noted in previous filings, we have 16 properties that are transitioning away from Adeptus Health in stages over a two year period as part of Adeptus Health’s confirmed plan of reorganization under Chapter 11 of the Bankruptcy Code. On January 1, 2018

15

---

 

and April 1, 2018, Adeptus Health vacated and stopped making rent payments on five and three properties, respectively.  Another seven properties will be transitioned away from Adeptus Health on October 1, 2018, with the remaining property on October 1, 2019. During the transition period, Adeptus Health has and will continue to make lease payments.  As a result of the shortening of our lease term on these properties, we recorded a $3.9 million charge to accelerate the amortization of the straight-line rent receivables in the first half of 2018. At June 30, 2018, our investment in these 16 facilities approximates 1% of our total assets. Although no assurances can be made that we will not recognize a loss in the future, we believe at June 30, 2018 that our plans to sell or re-lease these 16 transition facilities will not result in any material loss or impairment.

At June 30, 2018, excluding the 16 transition properties, we have 21 properties leased to Adeptus Health representing $131.3 million or 1.4% of our total assets.  During the last fifteen months, we have re-tenanted 22 properties with an investment of $172.1 million to strong credit worthy operators including:

Through June 30, 2018, all rent has been paid on these facilities, and we have only incurred a $0.5 million charge to-date related to the write-off of straight-line rent receivables on the facilities re-tenanted to Ochsner in 2017.

Gilbert and Florence Facilities

In the first quarter of 2018, we terminated the lease at our Gilbert and Florence, Arizona facilities due to the tenant not meeting its rent obligations pursuant to the lease. As a result of the lease terminating, we recorded a charge of $1.1 million to reserve against the straight-line rent receivables in February 2018. On April 25, 2018, this former tenant filed for involuntary bankruptcy. At June 30, 2018, all outstanding receivables were completely reserved.  Although no assurances can be made that we will not have any impairment charges in the future, we believe our investment in the Gilbert and Florence facilities of $37.8 million at June 30, 2018, is fully recoverable.

Loans

The following is a summary of our loans (in thousands):

 

 

The decrease in mortgage loans relates to the use of two Steward mortgage loans to fund our acquisition of the related fee simple real estate of two facilities on June 27, 2018 – see “Acquisitions” of this Note 3 for further information. This decrease was partially offset by the new mortgage loans made on the St. Joseph property on March 1, 2018 and as part of the Vibra disposal transaction on June 4, 2018 – see “Disposals” of this Note 3 for further information.

 

Our non-mortgage loans typically consist of loans to our tenants for acquisitions and working capital purposes. At June 30, 2018, acquisition loans includes $113.6 million in loans to Ernest.

16

---

 

Concentrations of Credit Risk

Our revenue concentration for the six months ended June 30, 2018 as compared to the prior year is as follows (dollars in thousands):

Revenue by Operator

 

Revenue by U.S. State and Country

 

 

On an individual property basis, we had no investment of any single property greater than 4% of our total assets as of June 30, 2018.

17

---

 

4. Debt

The following is a summary of debt (dollar amounts in thousands):

 

 

As of June 30, 2018, principal payments due on our debt (which exclude the effects of any discounts, premiums, or debt issue costs recorded) are as follows (in thousands):

 

 

 

2017 Activity

On February 1, 2017, we replaced our previous unsecured credit facility (which we had entered into in 2014 and amended in 2015) with a new revolving credit and term loan agreement (“Credit Facility”). The new agreement included a $1.3 billion unsecured revolving loan facility (same amount as the previous revolving loan facility), a $200 million unsecured term loan facility ($50 million lower than the previous term loan), and a new €200 million unsecured term loan facility.

On March 4, 2017, we redeemed the €200 million aggregate principal amount of our 5.750% Senior Unsecured Notes due 2020.

On March 24, 2017, we completed a €500 million senior unsecured notes offering (“3.325% Senior Unsecured Notes due 2025”). A portion of the proceeds from this offering were used to prepay and extinguish the €200 million term loan facility portion of our Credit Facility on March 30, 2017.

With the replacement of our old credit facility, the redemption of the 5.750% Senior Unsecured Notes due 2020, and the payoff of our €200 million euro term loan, we incurred a debt refinancing charge of approximately $14 million in the first six months of 2017.

18

---

 

Covenants

Our debt facilities impose certain restrictions on us, including restrictions on our ability to: incur debts; create or incur liens; provide guarantees in respect of obligations of any other entity; make redemptions and repurchases of our capital stock; prepay, redeem or repurchase debt; engage in mergers or consolidations; enter into affiliated transactions; dispose of real estate or other assets; and change our business. In addition, the credit agreements governing our Credit Facility limit the amount of dividends we can pay as a percentage of normalized adjusted funds from operations, as defined in the agreements, on a rolling four quarter basis. At June 30, 2018, the dividend restriction was 95% of normalized adjusted funds from operations (“NAFFO”). The indentures governing our senior unsecured notes also limit the amount of dividends we can pay based on the sum of 95% of NAFFO, proceeds of equity issuances and certain other net cash proceeds. Finally, our senior unsecured notes require us to maintain total unencumbered assets (as defined in the related indenture) of not less than 150% of our unsecured indebtedness.

In addition to these restrictions, the Credit Facility contains customary financial and operating covenants, including covenants relating to our total leverage ratio, fixed charge coverage ratio, secured leverage ratio, consolidated adjusted net worth, unsecured leverage ratio, and unsecured interest coverage ratio. This Credit Facility also contains customary events of default, including among others, nonpayment of principal or interest, material inaccuracy of representations and failure to comply with our covenants. If an event of default occurs and is continuing under the Credit Facility, the entire outstanding balance may become immediately due and payable. At June 30, 2018, we were in compliance with all such financial and operating covenants.

5. Common Stock/Partners’ Capital

Medical Properties Trust, Inc.

On May 1, 2017, we completed an underwritten public offering of approximately 43.1 million shares (including the exercise of the underwriters’ 30-day option to purchase an additional 5.6 million shares) of our common stock, resulting in net proceeds of approximately $548 million, after deducting offering expenses.

MPT Operating Partnership, L.P.

At June 30, 2018, the Company has a 99.92% ownership interest in the Operating Partnership with the remainder owned by two other partners, which are employees.

During the six months ended June 30, 2017, the Operating Partnership issued approximately 43.1 million units in direct response to the common stock offerings by Medical Properties Trust, Inc. during the same period.

6. Stock Awards

We adopted the 2013 Equity Incentive Plan (the “Equity Incentive Plan”) during the second quarter of 2013, which authorizes the issuance of common stock options, restricted stock, restricted stock units, deferred stock units, stock appreciation rights, performance units and awards of interests in our Operating Partnership. The Equity Incentive Plan is administered by the Compensation Committee of the Board of Directors. We have reserved 8,196,770 shares of common stock for awards under the Equity Incentive Plan for which 1,690,590 million shares remain available for future stock awards as of June 30, 2018. Share-based compensation expense totaled $6.7 million and $4.4 million for the six months ended June 30, 2018 and 2017, respectively.

7. Fair Value of Financial Instruments

We have various assets and liabilities that are considered financial instruments. We estimate that the carrying value of cash and cash equivalents and accounts payable and accrued expenses approximate their fair values. We estimate the fair value of our interest and rent receivables using Level 2 inputs such as discounting the estimated future cash flows using the current rates at which similar receivables would be made to others with similar credit ratings and for the same remaining maturities. The fair value of our mortgage loans and working capital loans are estimated by using Level 2 inputs such as discounting the estimated future cash flows using the current rates which similar loans would be made to borrowers with similar credit ratings and for the same remaining maturities. We determine the fair value of our senior unsecured notes using Level 2 inputs such as quotes from securities dealers and market makers. We estimate the fair value of our revolving credit facility and term loan using Level 2 inputs based on the present value of future payments, discounted at a rate which we consider appropriate for such debt.

19

---

 

Fair value estimates are made at a specific point in time, are subjective in nature, and involve uncertainties and matters of significant judgment. Settlement of such fair value amounts may not be possible and may not be a prudent management decision. The following table summarizes fair value estimates for our financial instruments (in thousands):

 

Items Measured at Fair Value on a Recurring Basis

Our equity interest in Ernest along with their related loans are measured at fair value on a recurring basis as we elected to account for these investments using the fair value option method. We have elected to account for these investments at fair value due to the size of the investments and because we believe this method is more reflective of current values. We have not made a similar election for other currently existing equity interests or loans.

At June 30, 2018, these amounts were as follows (in thousands):

 

 

Our mortgage and other loans with Ernest are recorded at fair value based on Level 2 inputs by discounting the estimated cash flows using the market rates which similar loans would be made to borrowers with similar credit ratings and the same remaining maturities. Our equity investment in Ernest is recorded at fair value based on Level 3 inputs, by using a discounted cash flow model, which requires significant estimates of our investee such as projected revenue and expenses and appropriate consideration of the underlying risk profile of the forecast assumptions associated with the investee. We classify the equity investment as Level 3, as we use certain unobservable inputs to the valuation methodology that are significant to the fair value measurement, and the valuation requires management judgment due to the absence of quoted market prices. For the cash flow model, our observable inputs include use of a capitalization rate, discount rate (which is based on a weighted average cost of capital), and market interest rates, and our unobservable input includes an adjustment for a marketability discount (“DLOM”) on our equity investment of 40% at June 30, 2018.

In regards to the underlying projection of revenues and expenses used in the discounted cash flow model, such projections are provided by Ernest. However, we will modify such projections (including underlying assumptions used) as needed based on our review and analysis of Ernest’s historical results, meetings with key members of management, and our understanding of trends and developments within the healthcare industry.

In arriving at the DLOM, we started with a DLOM range based on the results of studies supporting valuation discounts for other transactions or structures without a public market. To select the appropriate DLOM within the range, we then considered many qualitative factors including the percent of control, the nature of the underlying investee’s business along with our rights as an investor pursuant to the operating agreement, the size of investment, expected holding period, number of shareholders, access to capital marketplace, etc. To illustrate the effect of movements in the DLOM, we performed a sensitivity analysis below by using basis point variations (dollars in thousands):

 

 

Because the fair value of the Ernest investments noted above is below our original cost, we recognized an unrealized loss during the first half of 2018. No unrealized gain/loss on the Ernest investments was recorded in the first half of 2017.

20

---

 

8. Earnings Per Share

Medical Properties Trust, Inc.

Our earnings per share were calculated based on the following (amounts in thousands):

 

 

MPT Operating Partnership, L.P.

Our earnings per common unit were calculated based on the following (amounts in thousands):

 

 

21

---

 

 

9. Commitments and Contingencies

Commitments

On September 28, 2016, we entered into definitive agreements to acquire an acute care hospital in Washington for a purchase price of $17.5 million. Upon closing, the facility will be leased to RCCH, pursuant to the current master lease. Closing of this transaction, which is expected to be completed in 2018 is subject to customary real estate, regulatory and other closing conditions.

On June 6, 2018, we entered into a definitive agreement to acquire four rehabilitation hospitals in Germany for a purchase price of approximately €23 million (including real estate transfer taxes). Upon closing, these facilities will be leased to affiliates of MEDIAN, pursuant to a new 27-year master lease with annual escalators at the greater of one percent or 70% of the change in German CPI. We expect to complete this transaction during the third quarter of 2018.

Contingencies

We are a party to various legal proceedings incidental to our business. In the opinion of management, after consultation with legal counsel, the ultimate liability, if any, with respect to those proceedings is not presently expected to materially affect our financial position, results of operations or cash flows.

 

22

---

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion and analysis of the consolidated financial condition and consolidated results of operations are presented on a combined basis for Medical Properties Trust and MPT Operating Partnership, L.P. as there are no material differences between these two entities.

The following discussion and analysis of the consolidated financial condition and consolidated results of operations should be read together with the condensed consolidated financial statements and notes thereto contained in this Form 10-Q and the consolidated financial statements and notes thereto contained in our Annual Report on Form 10-K for the year ended December 31, 2017.

Forward-Looking Statements.

This report on Form 10-Q contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Such forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results or future performance, achievements or transactions or events to be materially different from those expressed or implied by such forward-looking statements, including, but not limited to, the risks described in our Annual Report on Form 10-K and as updated in our quarterly reports on Form 10-Q for future periods, and current reports on Form 8-K as we file them with the SEC under the Securities Exchange Act of 1934, as amended. Such factors include, among others, the following:

Key Factors that May Affect Our Operations

Our revenue is derived from rents we earn pursuant to the lease agreements with our tenants, from interest income from loans to our tenants and other facility owners and from profits or equity interests in certain of our tenants’ operations. Our tenants operate in

23

---

 

the healthcare industry, generally providing medical, surgical and rehabilitative care to patients. The capacity of our tenants to pay our rents and interest is dependent upon their ability to conduct their operations at profitable levels. We believe that the business environment of the industry segments in which our tenants operate is generally positive for efficient operators. However, our tenants’ operations are subject to economic, regulatory and market conditions that may affect their profitability, which could impact our results. Accordingly, we monitor certain key factors, changes to which we believe may provide early indications of conditions that may affect the level of risk in our portfolio.

Key factors that we consider in underwriting prospective tenants and borrowers and in monitoring the performance of existing tenants and borrowers include the following:

Certain business factors, in addition to those described above that directly affect our tenants and borrowers, will likely materially influence our future results of operations. These factors include:

CRITICAL ACCOUNTING POLICIES

Refer to our 2017 Annual Report on Form 10-K for a discussion of our critical accounting policies, which include revenue recognition, investments in real estate, purchase price allocation, loans, losses from rent and interest receivables, stock-based compensation, our fair value option election, and our accounting policy on consolidation. During the six months ended June 30, 2018, there were no material changes to these policies.

Overview

We are a self-advised REIT focused on investing in and owning net-leased healthcare facilities across the U.S. and selectively in foreign jurisdictions. We have operated as a REIT since 2004. Medical Properties Trust, Inc. was incorporated under Maryland law on August 27, 2003, and MPT Operating Partnership, L.P. was formed under Delaware law on September 10, 2003. We conduct substantially all of our business through MPT Operating Partnership, L.P. We acquire and develop healthcare facilities and lease the facilities to healthcare operating companies under long-term net leases, which require the tenant to bear most of the costs associated with the property. We also make mortgage loans to healthcare operators collateralized by their real estate assets. In addition, we selectively make loans to certain of our operators through our taxable REIT subsidiaries, the proceeds of which are typically used for acquisitions and working capital. Finally, from time to time, we acquire a profits or other equity interest in our tenants that gives us a right to share in such tenant’s profits and losses.

At June 30, 2018, our portfolio consisted of 272 properties leased or loaned to 31 operators, of which three are under development and 13 are in the form of mortgage loans.

24

---

 

Our investments in healthcare real estate, including mortgage and other loans, as well as any equity investments in our tenants are considered a single reportable segment. All of our investments are currently located in the U.S. and Europe. Our total assets are made up of the following (dollars in thousands):

 

 

The following is our revenue by operating type (dollar amounts in thousands):

 

 

 

Results of Operations

Three Months Ended June 30, 2018 Compared to June 30, 2017

Net income for the three months ended June 30, 2018, was $111.6 million, compared to $73.4 million for the three months ended June 30, 2017. This increase is primarily due to additional revenue from the Steward and MEDIAN investments that were made in 2017, along with the $24.2 million gain on the sale of the three properties (operated by Vibra) in June 2018. This increase is partially offset by incremental interest expense and depreciation expense, due primarily to the 2017 investments. Funds from operations (“FFO”), after adjusting for certain items (as more fully described in Reconciliation of Non-GAAP Financial Measures), was $129.9 million, or $0.36 per diluted share for the 2018 second quarter as compared to $113.6 million, or $0.32 per diluted share for the 2017 second quarter. This 14.3% increase in FFO is due to the increase in revenue from acquisitions made in 2017 (primarily our Steward investments), partially offset by higher interest expense to fund such investments.

A comparison of revenues for the three month periods ended June 30, 2018 and 2017 is as follows (dollar amounts in thousands):

 

 

25

---

 

Our total revenue for the 2018 second quarter is up $35.1 million, or 21.0%, over the prior year. This increase is made up of the following:

Interest expense, for the quarters ended June 30, 2018 and 2017, totaled $58.1 million and $39.7 million, respectively. This increase is primarily related to the higher average debt balance during the 2018 second quarter compared to the prior year second quarter in order to fund our acquisition activity in the second half of 2017 and approximately $0.8 million relates to foreign currency fluctuation. This impact on interest expense is partially offset by slightly lower weighted-average interest rates period over period due to certain refinancing activities in our debt during 2017. Our weighted-average interest rate was 4.5% for the three months ended June 30, 2018, as compared to 4.6% in the same period in 2017.

Real estate depreciation and amortization during the second quarter of 2018 increased to $34.5 million from $29.5 million in 2017, due to the incremental depreciation from the facilities acquired (particularly the Steward facilities acquired in the 2017 third quarter) and the development properties completed in 2017 and the first half of 2018.

General and administrative expenses totaled $19.6 million for the 2018 second quarter, which is a $4.5 million increase from the prior year second quarter. As noted in our 2018 first quarter Form 10-Q, general and administrative expenses are higher in 2018 due to our adoption of the new accounting standard on asset acquisitions (ASU 2017-01). Excluding the $1.5 million of higher expense due to the accounting change, general and administrative expenses represented approximately 9.0% of revenue in the 2018 second quarter, which is consistent with 2017. On a dollar basis (exclusive of the accounting change impact), general and administrative expenses were up $3.0 million from the prior year second quarter due to travel and compensation expenses, which are up as a result of the growth and expansion of our company.

Acquisition costs decreased $10.4 million from the prior year. The $10.8 million of acquisition costs in 2017 primarily related to the MEDIAN transactions along with deals completed subsequent to June 2017. In regards to the 2018 second quarter, all third party transaction costs directly related to acquisitions are now capitalized due to the adoption of ASU 2017-01. However, we did incur $0.4 million in the current period related to the settlement of a contingency involving an acquisition that occurred prior to the adoption of ASU 2017-01.

During the three months ended June 30, 2018, we sold three of our long-term acute care hospitals (operated by Vibra) at a gain of $24.2 million. We had no disposals in the 2017 second quarter. See Note 3 to Item 1 of this Form 10-Q for further details.

Income tax expense typically includes U.S. federal and state income taxes on our TRS entities, as well as non-U.S. income based or withholding taxes on certain investments located in jurisdictions outside the U.S. The income tax expense for the three months ended June 30, 2018 reflects an increase over the prior year due to an increase in financial taxable income from our international investments.  We utilize the asset and liability method of accounting for income taxes. Deferred tax assets are recorded to the extent we believe these assets will more likely than not be realized. In making such determination, all available positive and negative evidence is considered, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning strategies, and recent financial performance. Based upon our review of all positive and negative evidence, including our three-year cumulative pre-tax book loss position in certain entities, we concluded that a full valuation allowance should continue to be recorded against the majority of our U.S. and certain of our international net deferred tax assets at June 30, 2018. In the future, if we determine that it is more likely than not that we will realize our net deferred tax assets, we will reverse the applicable portion of the valuation allowance, recognize an income tax benefit in the period in which such determination is made, and incur higher income taxes in future periods.

26

---

 

Six Months Ended June 30, 2018 Compared to June 30, 2017

Net income for the six months ended June 30, 2018, was $202.2 million, compared to $141.4 million for the six months ended June 30, 2017. This increase is primarily due to additional revenue from the Steward and MEDIAN investments that were made in 2017, no debt refinancing charges in 2018 compared to $14.4 million in the 2017 first half, and $18.2 million of higher gains on sales of real estate in 2018 versus 2017. This increase is partially offset by increased interest expense from higher average outstanding debt balances to fund new investments in 2017 and higher depreciation expenses from investments made in 2017. Funds from operations (“FFO”), after adjusting for certain items (as more fully described in Reconciliation of Non-GAAP Financial Measures), was $261.4 million, or $0.71 per diluted share for the first six months of 2018 as compared to $219.6 million, or $0.65 per diluted share for the first six months of 2017. This 19.1% increase in FFO is due to the increase in revenue from acquisitions and completed development projects made in 2017 (primarily our Steward investments).

A comparison of revenues for the six month periods ended June 30, 2018 and 2017 is as follows (dollar amounts in thousands):

 

 

Our total revenue for the first six months of 2018 is up $83.7 million, or 25.9%, over the prior year. This increase is made up of the following:

Interest expense, for the six months ended June 30, 2018 and 2017, totaled $115.1 million and $77.7 million, respectively. This increase is primarily related to the higher average debt balance during the first six months of 2018 compared to the first six months of 2017 in order to fund our 2017 acquisition activity and approximately $2.1 million relates to foreign currency fluctuation. The impact on interest expense is partially offset by slightly lower weighted average interest rates period over period due to certain refinancing activities in our debt during 2017. Our weighted-average interest rate was 4.5% for the six months ended June 30, 2018, as compared to 4.6% in the same period in 2017.

Real estate depreciation and amortization during the first six months of 2018 increased to $70.3 million from $57.1 million in the same period of 2017, due to the incremental depreciation from the facilities acquired (particularly the Steward and MEDIAN facilities acquired in 2017) and the development properties completed in 2017 and 2018.

General and administrative expenses totaled $37.4 million for the first six months of 2018, which is a $9.1 million increase from the prior year. As noted previously, general and administrative expenses were higher during the first six months of 2018 due to our adoption of ASU 2017-01. Excluding the $3.1 million of higher expense due to the accounting change, general and administrative expenses represented 8.4% of revenue in the first half of 2018, which was lower than 8.7% in 2017. On a dollar basis (exclusive of the accounting change impact), general and administrative expenses were up $6 million from the prior year due to travel and compensation expenses, which are up as a result of the growth and expansion of our company.

Acquisition costs decreased $13.2 million from the prior year. The acquisition costs in 2017 primarily related to the MEDIAN transaction along with deals completed subsequent to June 2017. In regards to the first six months of 2018, all third party transaction costs directly related to acquisitions are now capitalized due to the adoption of ASU 2017-01 as noted previously.  However, we did

27

---

 

incur $0.4 million in the current period related to the settlement of a contingency involving an acquisition that occurred prior to the adoption of ASU 2017-01.

During the six months ended June 30, 2018, we sold one acute care property (operated by Steward) and three long-term acute care properties (operated by Vibra) at a gain of $25.6 million. In the 2017 first half, we sold one RCCH property resulting in a $7.4 million gain. See Note 3 to Item 1 of this Form 10-Q for further details.

In the first half of 2017, we incurred $14.4 million of debt refinancing costs related to various debt refinancing activities as disclosed in Note 4 to Item 1 of this Form 10-Q. We did not have any similar charges during the first six months of 2018.

Income tax expense typically includes U.S. federal and state income taxes on our TRS entities, as well as non-U.S. income based or withholding taxes on certain investments located in jurisdictions outside the U.S. The income tax expense for the six months ended June 30, 2018, reflects an increase from prior year due to an increase in financial taxable income from our international investments.  We utilize the asset and liability method of accounting for income taxes. Deferred tax assets are recorded to the extent we believe these assets will more likely than not be realized. In making such determination, all available positive and negative evidence is considered, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning strategies, and recent financial performance. Based upon our review of all positive and negative evidence, including our three-year cumulative pre-tax book loss position in certain entities, we concluded that a full valuation allowance should continue to be recorded against the majority of our U.S. and certain of our international net deferred tax assets at June 30, 2018. In the future, if we determine that it is more likely than not that we will realize our net deferred tax assets, we will reverse the applicable portion of the valuation allowance, recognize an income tax benefit in the period in which such determination is made, and incur higher income taxes in future periods.

Reconciliation of Non-GAAP Financial Measures

Investors and analysts following the real estate industry utilize funds from operations, or FFO, as a supplemental performance measure. FFO, reflecting the assumption that real estate asset values rise or fall with market conditions, principally adjusts for the effects of GAAP depreciation and amortization of real estate assets, which assumes that the value of real estate diminishes predictably over time. We compute FFO in accordance with the definition provided by the National Association of Real Estate Investment Trusts, or NAREIT, which represents net income (loss) (computed in accordance with GAAP), excluding gains (losses) on sales of real estate and impairment charges on real estate assets, plus real estate depreciation and amortization and after adjustments for unconsolidated partnerships and joint ventures.

In addition to presenting FFO in accordance with the NAREIT definition, we also disclose normalized FFO, which adjusts FFO for items that relate to unanticipated or non-core events or activities or accounting changes that, if not noted, would make comparison to prior period results and market expectations less meaningful to investors and analysts.

We believe that the use of FFO, combined with the required GAAP presentations, improves the understanding of our operating results among investors and the use of normalized FFO makes comparisons of our operating results with prior periods and other companies more meaningful. While FFO and normalized FFO are relevant and widely used supplemental measures of operating and financial performance of REITs, they should not be viewed as a substitute measure of our operating performance since the measures do not reflect either depreciation and amortization costs or the level of capital expenditures and leasing costs necessary to maintain the operating performance of our properties, which can be significant economic costs that could materially impact our results of operations. FFO and normalized FFO should not be considered an alternative to net income (loss) (computed in accordance with GAAP) as indicators of our financial performance or to cash flow from operating activities (computed in accordance with GAAP) as an indicator of our liquidity.

28

---

 

The following table presents a reconciliation of net income attributable to MPT common stockholders to FFO for the three and six months ended June 30, 2018 and 2017 (in thousands, except per share data):

 

 

29

---

 

LIQUIDITY AND CAPITAL RESOURCES

2018 Cash Flow Activity

During the first half of 2018, we generated $196.5 million of cash flows from operating activities, primarily consisting of rent and interest from mortgage and other loans. We used these operating cash flows along with cash on-hand to fund our dividends of $180.8 million and certain investing and financing activities (including a $4.6 million reduction in our revolving credit facility).

Certain investing activities in the first half of 2018 included:

As disclosed in Note 3 to Item 1 of this Form 10-Q, we expect to close on a joint venture involving 71 properties in Germany in the 2018 third quarter with a total valuation of €1.635 billion. In preparation of this joint venture, we issued new secured debt on these properties resulting in gross proceeds of €655 million on August 3, 2018, which we expect to use to reduce our revolver balance.

2017 Cash Flow Activity

During the first half of 2017, we generated $154.9 million of cash flows from operating activities, primarily consisting of rent and interest from mortgage and other loans. We used these operating cash flows along with cash on-hand to fund our dividends of $151.7 million and certain investing activities.

Certain investing and financing activities in the first half of 2017 included:

Short-term Liquidity Requirements:

As of June 30, 2018, we have no debt principal payments due in the next twelve months — see debt maturity schedule below. At August 3, 2018, our availability under our revolving credit facility plus cash on-hand (factoring in the secured debt issued on August 3, 2018 in anticipation of the joint venture) approximated $1.3 billion. We believe this liquidity along with our current monthly cash receipts from rent and loan interest and availability under our at-the-market equity program is sufficient to fund our operations, interest obligations, our firm commitments (including expected funding requirements on our development projects), and dividends in order to comply with REIT requirements for the next twelve months.

We expect to lower our outstanding borrowings on our revolving credit facility and improve our leverage metrics during 2018 with the completion of the joint venture arrangement discussed above and completing strategic property sales. However, no assurance can be made that such transactions will be available to us or that our plans will be successful.

Long-term Liquidity Requirements:

As of June 30, 2018, we have no debt principal payments due between now and January 2021 when our revolving credit facility comes due (which can be extended by one year). With our liquidity at August 3, 2018 of approximately $1.3 billion, along with our current monthly cash receipts from rent and loan interest and the availability under our at-the-market equity program, we believe we have the liquidity available to us to fund our operations, debt and interest obligations, dividends in order to comply with REIT

30

---

 

requirements, and firm commitments (including expected funding requirements on our development projects) for the foreseeable future.

However, in order to fund our investment strategies and to fund debt maturities coming due in later years, we believe the following sources of capital are generally available in the market and we may access one or a combination of them:

However, there is no assurance that conditions will be favorable for such possible transactions or that our plans will be successful.

As of June 30, 2018, principal payments due on our debt (which excludes the effects of any discounts, premiums, or debt issue costs recorded) are as follows (in thousands):

 

 

Disclosure of Contractual Obligations

We presented our contractual obligations in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017. Except for changes to our operating lease commitments as updated in our Form 10-Q for the quarter ended March 31, 2018, there have been no significant changes in those obligations during the six months ended June 30, 2018.

Distribution Policy

The table below is a summary of our distributions declared during the two year period ended June 30, 2018:

 

 

We intend to pay to our stockholders, within the time periods prescribed by the Internal Revenue Code (“Code”), all or substantially all of our annual taxable income, including taxable gains from the sale of real estate and recognized gains on the sale of securities. It is our policy to make sufficient cash distributions to stockholders in order for us to maintain our status as a REIT under the Code and to avoid corporate income and excise taxes on undistributed income. However, our Credit Facility limits the amount of dividends we can pay - see Note 4 in Item 1 to this Form 10-Q for further information.

31

---

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk.

Market risk includes risks that arise from changes in interest rates, foreign currency exchange rates, commodity prices, equity prices and other market changes that affect market sensitive instruments. We seek to mitigate the effects of fluctuations in interest rates by matching the terms of new investments with new long-term fixed rate borrowings to the extent possible. We may or may not elect to use financial derivative instruments to hedge interest rate or foreign currency exposure. For interest rate hedging, these decisions are principally based on our policy to match our variable rate investments with comparable borrowings, but are also based on the general trend in interest rates at the applicable dates and our perception of the future volatility of interest rates. For foreign currency hedging, these decisions are principally based on how our investments are financed, the long-term nature of our investments, the need to repatriate earnings back to the U.S. and the general trend in foreign currency exchange rates.

In addition, the value of our facilities will be subject to fluctuations based on changes in local and regional economic conditions and changes in the ability of our tenants to generate profits, all of which may affect our ability to refinance our debt, if necessary. The changes in the value of our facilities would be impacted also by changes in “cap” rates, which is measured by the current base rent divided by the current market value of a facility.

Our primary exposure to market risks relates to fluctuations in interest rates and foreign currency. The following analyses present the sensitivity of the market value, earnings and cash flows of our significant financial instruments to hypothetical changes in interest rates and exchange rates as if these changes had occurred. The hypothetical changes chosen for these analyses reflect our view of changes that are reasonably possible over a one-year period. These forward looking disclosures are selective in nature and only address the potential impact from these hypothetical changes. They do not include other potential effects which could impact our business as a result of changes in market conditions. In addition, they do not include measures we may take to minimize our exposure such as entering into future interest rate swaps to hedge against interest rate increases on our variable rate debt.

Interest Rate Sensitivity

For fixed rate debt, interest rate changes affect the fair market value but do not impact net income to common stockholders or cash flows. Conversely, for floating rate debt, interest rate changes generally do not affect the fair market value but do impact net income to common stockholders and cash flows, assuming other factors are held constant. At June 30, 2018, our outstanding debt totaled $4.9 billion, which consisted of fixed-rate debt of approximately $3.9 billion and variable rate debt of $1.0 billion. If market interest rates increase by 1%, the fair value of our debt at June 30, 2018 would decrease by $10.4 million. Changes in the fair value of our fixed rate debt will not have any impact on us unless we decided to repurchase the debt in the open market.

If market rates of interest on our variable rate debt increase by 1%, the increase in annual interest expense on our variable rate debt would decrease future earnings and cash flows by $0.3 million per year. If market rates of interest on our variable rate debt decrease by 1%, the decrease in interest expense on our variable rate debt would increase future earnings and cash flows by $0.3 million per year. This assumes that the average amount outstanding under our variable rate debt for a year is $1.0 billion, the balance of such variable rate debt at June 30, 2018.

Foreign Currency Sensitivity

With our investments in Germany, the United Kingdom, Spain, and Italy, we are subject to fluctuations in the euro and British pound to U.S. dollar currency exchange rates. Increases or decreases in the value of the euro to U.S. dollar and the British pound to U.S. dollar exchange rates may impact our financial condition and/or our results of operations. Based solely on operating results to-date in 2018 and on an annualized basis, if the euro exchange rate were to change by 5%, our net income and FFO would change by approximately $3.2 million and $5.0 million, respectively. Based solely on operating results to-date in 2018 and on an annualized basis, if the British pound exchange rate were to change by 5%, our net income and FFO would change by approximately $0.1 million and $0.2 million, respectively.

Item 4. Controls and Procedures.

Medical Properties Trust, Inc. and MPT Operating Partnership, L.P.

We have adopted and maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

32

---

 

As required by Rule 13a-15(b), under the Securities Exchange Act of 1934, as amended, we have carried out an evaluation, under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the quarter covered by this report. Based on the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective in providing reasonable assurance that information required to be disclosed by us in the reports that we file under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.

There has been no change in our internal control over financial reporting during our most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

33

---

 

PART II — OTHER INFORMATION

Item 1. Legal Proceedings.

The information contained in Note 9 “Commitments and Contingencies” of Part I, Item 1 of this Quarterly Report on Form 10-Q is incorporated by reference into this Item 1.

Item 1A. Risk Factors.

There have been no material changes to the Risk Factors as presented in our Annual Report on Form 10-K for the year ended December 31, 2017.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

Item 3. Defaults Upon Senior Securities.

None.

Item 4. Mine Safety Disclosures.

None.

Item 5. Other Information.

34

---

 

Item 6. Exhibits

 

 

35

---

 

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

 

Date: August 9, 2018

 

36

 

 

Exhibit 10.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

---

 

 

TABLE OF CONTENTS

 

 

 

 

 

 

---

 

 

BETWEEN:

WHEREAS:

IT IS AGREED as follows:

“Accounts” means the unaudited financial statements of the Company and each Group Company as at and for the financial year ended on the Accounts Date;

“Accounts Date” means 31 December 2016;

“Affiliate” means, in relation to the person concerned, any person (whether a body  corporate, partnership or unit trust and whether or not having legal personality) which Controls, is Controlled by or is under common Control with such person;

“After Tax Basis” means, with respect to a payment obligation (including any indemnification payment), that: (a) if the relevant amount payable is subject to Tax in the hands of the recipient; and/or (b) if the relevant amount payable is payable by way of compensation or indemnity in respect of any matter that has given rise or will give rise to a Relief for the recipient of the relevant amount payable, then the relevant amount payable shall be increased or reduced by such amount as is necessary to ensure that the net amount retained by the recipient after Tax for which it is liable on the receipt leaves the recipient in no better and no worse a financial position after Tax than they would have been in had the payment not been subject to Tax in their hands or (in the case of any payment by way of compensation or indemnity) had the matter compensated for or indemnified against not arisen;

“agreed terms” means, in relation to a document, such document in the terms agreed between MPT and PRIMOTOP, with such alterations as may be agreed in writing between MPT and PRIMOTOP from time to time;

 

 

1

---

 

 

“Agreed Value of the Properties” means the value agreed for the Properties and equal to an aggregate fixed amount of €1,635,042,350;

“Annual Operating Budget” has the meaning given in the Shareholders’ Agreement;

“Approved Transactions” means each of:

and “Approved Transaction” means any one of them;

“Articles” has the meaning given in Clause 4.7;

“Auditor” means the auditor appointed to audit the Draft Completion Accounts, being any one of PricewaterhouseCoopers, Deloitte or Grant Thornton;

“Borrowings” means, in relation to a person, financial indebtedness and amounts in the nature of financial indebtedness, owed by that person;

“Business Day” means a day which is not a Saturday or Sunday or a bank or public holiday in the United States, Germany, Luxembourg or France;

“Business Plan” has the meaning given in the Shareholders' Agreement;

“Cash” has the meaning given in paragraph 3 of Part B of Schedule 4;

“CA Notice” has the meaning given in Clause 7.1(f);

“CA Objection Notice” has the meaning given in Clause 7.1(f);

“Change of Law RETT” has the meaning given in Clause 16.7(b);

“Clearance” has the meaning given in Clause 5.1;

“Company’s Account” means an account with ING Bank with the following details: Account Name: MPT RHM HOLDCO S.A.R.L.; Swift Code: CELLLULL; IBAN: LU45 0141 2488 3080 0000;

“Competent Competition Authority” means the German Federal Cartel Office;

“Completion” means the completion of the subscription for the PRIMOTOP Shares and the advance of the PRIMOTOP Shareholder Loan by PRIMOTOP pursuant to Clause 6.1;

“Completion Accounts” means the LuxGAAP financial statements (balance sheet and Profit & Loss statements) to be prepared as at the Completion Date in accordance with Clause 7.1 and Part A of Schedule 4;

“Completion Date” means the latest of:

 

 

2

---

 

 

and where more than one such period runs concurrently, the period which ends on the latest date;

“Completion Obligations” means the obligations set out in Clause 6.3 and 6.4 and Schedule 3, Part B and “Completion Obligation” shall be construed accordingly;

“Conditions Precedent” has the meaning given in Clause 5.1;

“Consideration Excess” means the absolute value of the difference between the Estimated PRIMOTOP Shares Subscription Amount and the PRIMOTOP Shares Subscription Amount, if positive;

“Consideration Shortfall” means the absolute value of the difference between the Estimated PRIMOTOP Shares Subscription Amount and the PRIMOTOP Shares Subscription Amount, if negative;

“Control” means, with respect to a person, directly or indirectly: (a) the holding of more than fifty percent (50%) of the share capital and/or voting rights of that person (by transparency by multiplying the shareholding and voting rights percentages); or (b)  the right to appoint or remove a majority of the directors of that person, by contract or otherwise; it being specified that an entity (with or without legal personality) shall be deemed to be Controlled by its managing partner, its management company, its general partner or any entity in charge of the management of that entity in any capacity whatsoever; and “Controlling” and “Controlled” shall be construed accordingly;

“Current Assets” has the meaning given in paragraph 3 of Part B of Schedule 4;

“Current Liabilities” has the meaning given in paragraph 3 of Part B of Schedule 4;

“Deposit” means the sum of €20,000,000;

“Disclosure Letter” means the letter in the agreed terms dated on or around the date of this Agreement from MPT to PRIMOTOP, which discloses matter(s), circumstance(s), act(s), or event(s) which occurred prior to the date of this Agreement and which constitute exceptions to the Warranties and the Tax Warranties;

“Dispute Auditor” has the meaning given in Clause 7.1(g) of this Agreement;

“Draft Completion Accounts” has the meaning given in Clause 7.1(a);

“Encumbrance” means any charge, mortgage, lien, option, equity, power of sale, pledge, hypothecation, usufruct, retention of title, right of pre-emption, right of first offer, right of first refusal or other third party rights or security interest of any kind or an agreement, arrangement or obligation to create any of the foregoing and “Encumber” shall be construed accordingly;

“Escrow Account” means the account of the Escrow Agent designated for the escrow of the Deposit pursuant to the terms of the Escrow Agreement;

“Escrow Agent” means Arendt & Medernach SA;

“Escrow Agreement” means the escrow agreement dated on or around the date of this Agreement between MPT, PRIMOTOP and the Escrow Agent;

 

 

3

---

 

 

“Estimated Cash” has the meaning given in paragraph 2 of Part B of Schedule 4;

“Estimated Completion Accounts” means the estimated LuxGAAP financial statements (balance sheet and Profit & Loss statements) to be prepared as at the Completion Date in accordance with Clause 6.1, Clause 7.1(a)(i) and 7.1(a)(ii) and with Part A of Schedule 4;

“Estimated Current Assets” has the meaning given in paragraph 2 of Part B of Schedule 4;

“Estimated Current Liabilities” has the meaning given in paragraph 2 of Part B of Schedule 4;

“Estimated Net Asset Value” means an amount equal to the estimated aggregate amount of the assets of the Group as at the Completion Date, less the estimated aggregate amount of the liabilities of the Group as at the Completion Date calculated in accordance with the specific policies and adjustments set out in Part A of Schedule 4 and with the methodology set out in Part B of Schedule 4, as shown in the Estimated Completion Accounts;

“Estimated Net Asset Value Notification” has the meaning given in Clause 6.1(a);

“Estimated Net Current Assets” has the meaning given in paragraph 2 of Part B of Schedule 4;

“Estimated PRIMOTOP Shares Subscription Amount” means the amount to be paid by PRIMOTOP on the Completion Date as consideration for the subscription for the PRIMOTOP Shares, corresponding to 50% of the Estimated Net Asset Value and to be further adjusted following Completion pursuant to the terms of Clause 7;

“EUR” means Euro, being the lawful currency in the territory of the European Monetary Union and “Euro”  “EUR” or “€” shall be construed accordingly;

“Exchange Rate” means, with respect to a particular currency for a particular day the spot rate of exchange (the closing mid-point) for that currency into Euro on such date as published in the London edition of the Financial Times first published thereafter or, where no such rate is published in respect of that currency for such date, at the rate published by the European Central Bank on its website www.ecb.eu as at the close of business in Frankfurt as at such date;

“Fairly Disclosed” means, disclosed in such a manner and in sufficient detail to enable a reasonable subscriber for shares in the Company to make a reasonably informed assessment of the nature and scope of the matter disclosed, and such matter being present, certain or more likely than not to occur;

“Gap Control Breach” has the meaning given in Clause 4.2(a);

“Gap Control Notice” has the meaning given in Clause 4.2(a);

“Group” means the Group Companies, taken as a whole;

“Group Companies” means the Company and the Subsidiaries and “Group Company” means any one of them;

“Inaccuracy Event” means one or more matter(s), circumstance(s), act(s) or event(s) or several events arising from substantially identical facts or circumstances, which occur prior to the Completion Date, which result in any of the Warranties or the Tax Warranties being untrue or inaccurate and which are not Fairly Disclosed in the Disclosure Letter;

“Indemnity Cap” has the meaning given in Clause 11.1;

“Indemnity Losses” means any Losses suffered or incurred by PRIMOTOP or the Group Companies after the date of this Agreement arising in connection with or as a result of the

 

 

4

---

 

 

implementation of the Pre-Completion Reorganisation transaction steps 1 – 15 (inclusive) of the Transaction Step Plan, including for the avoidance of doubt: (a) any RETT due to a retroactive denial of a RETT exemption claimed or applicable in connection with the Pre-Completion Reorganisation transaction steps even if the facts and circumstances leading to the denial of the initial RETT exemption occur after the Completion Date; and (b) any Loss arising as a result of any failure to comply with or the actual implementation of any Tax filing or Tax notification requirements (e.g. RETT filing or notification requirements) in relation to the Pre-Completion Reorganisation and “Indemnity Loss” shall be construed accordingly;

“Indemnity Losses Claim” means a claim for which MPT is liable pursuant to Clause 11.1;

“Initial Annual Operating Budget” has the meaning given in the Shareholders’ Agreement;

“Initial Bank” means Société Générale S.A. Frankfurt Branch, as original lender;

“Interim Material Inaccuracy Event” means an Inaccuracy Event which occurs after the date of this Agreement but prior to the Completion Date and which results in any of the Warranties or of the Tax Warranties being untrue or inaccurate and which, alone or together with any other Inaccuracy Event: (a) creates a reduction in the gross asset value of any Group Company or the Group; or (b) would create a Loss to PRIMOTOP, in each case, in excess of €5,000,000 in aggregate;

“Intragroup Loan Agreements” means any intragroup loan agreements entered into between Group Companies in order to document the Intragroup Loans;

“Intragroup Loans” means any intragroup loans advanced between Group Companies being, as at the date of this Agreement, the intragroup loans listed in Schedule 16;

“Leases” means the lease agreements existing with respect to the Properties as set out in Schedule 8 of this Agreement, and “Lease” shall mean any one of them;

“Liability to Tax” has the meaning given to it in Part 1 of Schedule 7;

“Long Stop Date” means 1 October 2018;

“Losses” means financial losses, liabilities, costs (including without limitation Taxes, legal costs and experts’ and consultants’ fees), charges, expenses, actions, proceedings, claims and demands, and “Loss” shall be construed accordingly;

“LP Pledge” has the meaning given to it in Clause 4.3(d);

“Management Accounts” means the unaudited monthly management accounts of each Group Company for the period ending on 30 September 2017;

“Management Agreement” means the management agreement, in the agreed terms and attached as Schedule 14, to be entered into between certain Group Companies and the Manager on Completion, pursuant to which the Manager will provide certain management services to such Group Companies;

“Management Fee” has the meaning given in the Management Agreement;

“Manager” means Medical Properties Trust S.à .r.l.;

“Material Breach Event Notice” has the meaning given at Clause 4.2(b);

“Material Breach Remedy Period” has the meaning given in Clause 4.2(b)(iii);

“Material Contract” means the management and administration agreement effective as of 1 April 2017 between certain Group Companies and Intertrust (Luxembourg) S.à r.l.;

 

 

5

---

 

 

“Material Gap Control Breach” means one or more:

“Material Inaccuracy Event” means a Pre-Signing Material Inaccuracy Event or an Interim Material Inaccuracy Event;

“Material Inaccuracy Event Notice” means a notice issued by PRIMOTOP to MPT under Clause 8.4(a) of this Agreement;

“Material Inaccuracy Remedy Period” has the meaning given in Clause 8.4(a);

“Material Interim Breach” means one or more Gap Control Breach(es) and/or one or more Inaccuracy Event(s) which together: (a) create a reduction in the gross asset value of any Group Company or the Group; or (b) would create a Loss to PRIMOTOP, in each case, in excess of €5,000,000 in aggregate;

“MPT Distribution” means a distribution to be made by the Company in accordance with Clause 6.5 and the Shareholders’ Agreement in an amount equal to the aggregate of: (a) 50% of the Estimated Net Asset Value; plus (b) the PRIMOTOP Shareholder Loan Amount; plus (c) the Third Party Financing Amount; plus (d) the amount of cash in the Estimated Completion Accounts exceeding the above item (c); minus (e) the difference between: (i) the Estimated Current Liabilities and (ii) the other Estimated Current Assets (excluding cash) (if the Estimated Current Assets exceed the Estimated Current Liabilities, the value of (e) shall be 0);  

“MPT’s Group” means MPT and its Affiliates (excluding the Group Companies) from time to time;

“MPT Profit Participating Loan” means the aggregate amount of principal plus any accrued and unpaid interest outstanding thereon owed by the Company pursuant to the MPT Profit Participating Loan Agreements following satisfaction of all Completion Obligations, including, for the avoidance of doubt, those set out in paragraph 3 of Part B of Schedule 3;

“MPT Profit Participating Loan Agreements” means:

 

 

6

---

 

 

“MPT Shareholder Loan Agreement” means the interest bearing loan agreement, in the agreed terms and attached as Schedule 13 hereto, to be entered into by MPT and the Company upon conversion of the MPT Profit Participating Loan in accordance with transaction step 13 of the Transaction Step Plan;

“MPT Shareholder Loan” means the interest bearing loan to be granted by MPT to the Company pursuant to the MPT Shareholder Loan Agreement;

“Net Asset Value” means an amount equal to the aggregate amount of the assets of the Group as at the Completion Date, less the aggregate amount of the liabilities of the Group as at the Completion Date calculated in accordance with the specific policies and adjustments set out in Part A of Schedule 4 and with the methodology set out in Part B of Schedule 4;

“Net Asset Value Report Format” means the reporting format to be appended as schedule 11 to the Shareholders’ Agreement;

“Net Current Assets” has the meaning given in paragraph 3 of Part B of Schedule 4;

“Net Current Assets Excess” means the absolute value of the difference between the Estimated Net Current Assets and the Net Current Assets, if positive;

“Net Current Assets Shortfall” means the absolute value of the difference between the Estimated Net Current Assets and the Net Current Assets, if negative;

“New Completion Date” has the meaning given in Clause 6.6(a)(ii)(B);

“Non-Value Items” means the non-value items in the accounts of the Company or any Group Company, corresponding to assets which have no market value, e.g. any outstanding amount of loan issuance costs capitalized and recorded in the relevant accounts, with the exception of loan issuance costs with respect to the Third-Party Financing which shall not be treated as non-value items;

“Parties” means the parties to this Agreement, each being a “Party”;

“Partnership” means MPT Luxembourg Partnership SCS;

“Partnership GP” means MPT Luxembourg GP S.à r.l.;

“Pre-Completion Reorganisation” means the steps to be carried out prior to, at and immediately following Completion, as set out in the Transaction Step Plan;

“Properties” means the real estate properties or, where applicable, hereditary building rights owned by the Group, details of which are set out in Schedule 2 and “Property” means any one of them;

“PRIMOTOP’s Group” means PRIMOTOP and its Affiliates (excluding the Group Companies) from time to time;

“PRIMOTOP Shareholder Loan Agreement” means the interest bearing loan agreement, in the agreed terms and attached as Schedule 12 hereto, to be entered into by PRIMOTOP and the Company on Completion;

“PRIMOTOP Shareholder Loan Amount” has the meaning given in Clause 3.3.;

“PRIMOTOP Shareholder Loan” means the interest bearing loan to be granted by PRIMOTOP to the Company on Completion pursuant to the PRIMOTOP Shareholder Loan Agreement for an amount equal to the PRIMOTOP Shareholder Loan Amount;

 

 

7

---

 

 

“PRIMOTOP Shares” means 12,500 new Shares having a nominal value of €1.00 each to be issued by the Company and subscribed for by PRIMOTOP upon Completion in accordance with this Agreement;

“PRIMOTOP Shares Subscription Amount” has the meaning given in Clause 3.2;

“PRIMOTOP Warranties” means the warranties set out in Schedule 6 and “PRIMOTOP Warranty” means any one of them;

“Pre-Signing Material Inaccuracy Event” means an Inaccuracy Event which occurred before the date of this Agreement but is revealed following the date of this Agreement, but prior to the Completion Date and which results in any of the Warranties or of the Tax Warranties being untrue or inaccurate and which, alone or together with any other Inaccuracy Event: (a) creates a reduction in the gross asset value of any Group Company or the Group; or (b) would create a Loss to PRIMOTOP, in each case, in excess of €5,000,000 in aggregate;

“Relevant Proportion” has the meaning given in the Shareholders' Agreement;

“Relief” shall have the meaning given in Schedule 7;

“Resolution Period” has the meaning given in Clause 7.1(g);

“RETT” means German real estate transfer tax (Grundewerbsteuer);

“RETTA” means the German Real Estate Transfer Tax Act (Grunderwerbsteuergesetz);

“RETT Law Change” means: (a) any change of the RETTA (including a change having retroactive effect) enacted between the date of this Agreement and Completion; and/or (b) any legislation enacted after Completion pursuant to a RETT Law Change Announcement (for the avoidance of doubt, irrespective of if and the extent to which any such RETT Law Change Announcement has been amended or changed in the legislation process until the final enacted form);

“RETT Law Change Announcement” means a legislative initiative formally brought into the lower house of the German parliament (Bundestag) by the upper house of the German parliament (Bundesrat) or publicly announced by any German state (Bundesstaat) or the German federal government (Bundesregierung) between the date of this Agreement and Completion, which aims to change the RETTA (for the avoidance of doubt, whether or not such initiative also has other aims);

“RETT Notification” means a notification pursuant to section 16 para. 5 in conjunction with section 18 et seqq. RETTA (as amended or any provision replacing the foregoing provisions) to inform the German Tax Authorities about: (a) the subscription for the PRIMOTOP Shares by PRIMOTOP pursuant to this Agreement (even if not explicitly required by the language of section 16 para. 5 RETTA in order to secure non-taxation upon any termination of this Agreement prior to Completion for any reason); and/or (b) the Pre-Completion Reorganisation;

“Shareholder Loan Agreements” means the MPT Shareholder Loan Agreement and the PRIMOTOP Shareholder Loan Agreement;

“Shareholders’ Agreement” means the shareholders’ agreement, in the agreed terms and attached as Schedule 15, to be entered into between the Company, MPT and PRIMOTOP at Completion in relation to the governance of the Company and the relationships of MPT and PRIMOTOP as shareholders of the Company;

“Shares” means all the shares in the issued share capital of the Company from time to time, being, as at the date of this Agreement, 12,500 shares having a nominal value of €1.00 each held by MPT;

 

 

8

---

 

 

“Subsidiaries” means the companies Controlled by the Company (including, for the avoidance of doubt, the Partnership and the Partnership GP), details of which are set out in Part B and Part C of Schedule 1 and “Subsidiary” means any one of them;

“Supplemental Disclosure Letter” means the letter dated on or prior to the Completion Date from MPT to PRIMOTOP, which discloses any matters occurring in the period between the date of this Agreement and Completion constituting exceptions to the Warranties and the Tax Warranties;

“Surviving Clauses” shall have the meaning given in Clause 16.14;

“Tax” shall have the meaning given in Schedule 7;

“Tax Authority” shall have the meaning given in Schedule 7;

“Tax Claim” shall have the meaning given in Schedule 7;

“Tax Covenant” shall have the meaning given in Schedule 7;

“Tax Warranties” shall have the meaning given in Schedule 7;

“Tenants” means any tenant, licensee or any other third party with subsisting rights of use, occupation or enjoyment of a Property or any part thereof pursuant to the terms of a Lease;

“Third Party Facility Agreement” means the facility agreement to be entered into between the Group and a third party lender or lenders, pursuant to which the Group will incur Borrowings;

“Third Party Financing” means the financing to be provided to the Group by a third party lender or lenders pursuant to the Third Party Financing Documents substantially in accordance with the term sheet set out in Schedule 10;

“Third Party Financing Amount” means the amounts received by the Company following advance of the Third Party Financing net of any debt issuance costs;

“Third Party Financing Documents” means the Third Party Facility Agreement and related security agreements and ancillary documents to be entered into between the Group and a third party lender or lenders prior to Completion in the context of the Third Party Financing;

“Transaction” means the transaction contemplated by Clause 2.1;

“Transaction Documents” means this Agreement, the Disclosure Letter, the Supplemental Disclosure Letter, the Shareholder Loan Agreements, the Shareholders’ Agreement, the Articles, the Management Agreement and any other document entered into in connection with the Transaction and “Transaction Document” shall be construed accordingly;

“Transaction Step Plan” means the transaction step plan set out in Schedule 9 setting out certain transaction steps to be undertaken in relation to the Group prior to, at and immediately following Completion;

“Unconditional Date” means the Business Day on or by which all of the Conditions Precedent have been satisfied in accordance with Clause 0;

“VAT” shall have the meaning given in Schedule 7;

“VDD Reports” means each of: (a) the corporate legal vendor due diligence report relating to the Transaction prepared by Arendt & Medernach SA dated on or around the date of this Agreement; (b) the property legal vendor due diligence report relating to the Transaction prepared by Goodwin Procter LLP dated on or around the date of this Agreement; (c) the tax

 

 

9

---

 

 

and financial due diligence reports relating to the Transaction prepared by Ernst & Young GmbH dated on or around the date of this Agreement; and (d) the technical and fire protection vendor due diligence reports relating to the Transaction prepared by CBRE Preuss Valteq GmbH which are dated on or around the date of this Agreement;

“Warranties” means the warranties set out in Schedule 5 and “Warranty” means any one of them;

“Warranty Cap” has the meaning given in Clause 10.1;

“Warranty Claim” means a claim for a breach of one or more of the Warranties or Tax Warranties; and

“Warranty Notification” has the meaning given in Clause 8.3.

References to a statute or statutory provision include:

References to one gender include all genders and references to the singular include the plural and vice versa.

References to:

References to this Agreement shall include any recitals and Schedules to it and references to Clauses and Schedules are to Clauses of, and Schedules to, this Agreement. References to paragraphs and parts are to paragraphs and parts of the Schedules.

Headings shall be ignored in interpreting this Agreement.

References to books, records or other information mean books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm.

 

 

10

---

 

 

References to any Luxembourg legal term shall, in respect of any jurisdiction other than Luxembourg, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction.

The words “including”, “include”, “in particular” and words of similar effect shall not be deemed to limit the general effect of the words that precede them.

 

 

11

---

 

 

The consideration payable by PRIMOTOP for the subscription for the PRIMOTOP Shares under this Agreement shall be an amount in Euro equal to 50% of the Net Asset Value, of which €12,500 shall be allocated to the Company’s share capital and the remainder shall be credited to the Company’s share premium account (the “PRIMOTOP Shares Subscription Amount”).

The amount payable by PRIMOTOP to advance the PRIMOTOP Shareholder Loan under this Agreement shall be €290,000,000 (the “PRIMOTOP Shareholder Loan Amount”).

 

 

12

---

 

 

 

 

13

---

 

 

 

 

14

---

 

 

No breach of this Agreement shall be deemed to have occurred as a result of any action taken by MPT and/or the Group Companies in relation to the implementation of the Pre-Completion Reorganisation in accordance with the Transaction Step Plan and/or the implementation of the Third Party Financing in accordance with the Third Party Financing Documents.

MPT and PRIMOTOP agree that the terms and conditions of the categories of shares to be created pursuant to the Shareholders' Agreement and to be held by each of them respectively shall reflect their agreement with respect to distribution rights, including, for the avoidance of doubt, pursuant to the provisions of Clause 11 (Administrative Costs) of the Shareholders' Agreement and MPT and PRIMOTOP agree to discuss in good faith such terms and conditions between the date of this Agreement and Completion.

On the date of this Agreement, the Parties shall comply with their respective obligations specified in Part A of Schedule 3.

The Parties agree that MPT and/or the Company and/or the Partnership shall be entitled to file one or more RETT Notifications with the German Tax Authorities between the date of this Agreement and Completion and each Party undertakes from time to time to execute such

 

 

15

---

 

 

documents and perform such acts as MPT and/or the Company and/or the Partnership may reasonably require for the purpose of such RETT Notifications, provided that MPT shall bear the relevant cost for such RETT Notifications and/or requested acts from PRIMOTOP.

 

 

16

---

 

 

The agreement to subscribe for the PRIMOTOP Shares and to advance the PRIMOTOP Shareholder Loan to the Company, contained in Clause 2, is conditional upon the satisfaction of the following conditions (the “Conditions Precedent”) or their satisfaction subject only to Completion:

 

 

17

---

 

 

 

 

18

---

 

 

Completion shall take place at the offices of Arendt & Medernach SA on the Completion Date or at such other place within the Grand Duchy of Luxembourg or on such other time or date as MPT and PRIMOTOP may agree in writing.

On Completion, the Parties shall comply with their respective Completion Obligations.

 

 

19

---

 

 

 

 

20

---

 

 

 

 

21

---

 

 

 

 

22

---

 

 

 

 

23

---

 

 

On the date falling 10 Business Days after the Completion Accounts and the Net Asset Value becomes final and binding on the parties in accordance with this Agreement:

 

 

24

---

 

 

all payments pursuant to this Clause 7.3 shall be made by telegraphic transfer of immediately available funds to the account nominated by PRIMOTOP, MPT or the Company (as applicable), free and clear of all set-offs and counterclaims and, with respect to the payments made to MPT or PRIMOTOP, net of any withholdings or deduction required by any applicable laws, it being specified that any withholdings or deduction shall be treated as amounts distributed to MPT or PRIMOTOP (as applicable) under this Clause 7.3.

 

 

25

---

 

 

If, after the date of this Agreement, MPT or the Manager becomes aware:

MPT shall notify PRIMOTOP in writing as soon as practicable (and in any event no later than 5 Business Days after having become aware of the like) setting out such details as are available or reasonably obtainable (a “Warranty Notification”).In the case of any failure by MPT to notify PRIMOTOP in accordance with this Clause 8.3, the time limitation periods set out in Clause 10.2 shall start only from the date that notification is actually provided or, if earlier, from the date on which PRIMOTOP otherwise becomes aware of the relevant facts, circumstance or event.

 

 

26

---

 

 

PRIMOTOP warrants to MPT that the PRIMOTOP Warranties:

 

The provisions of Schedule 7 to this Agreement apply in relation to the matters to which they relate.

 

 

27

---

 

 

Part 1, Part 2 and Part 3 (excluding the Tax Covenant) and Part 4 of Schedule 7 shall come into effect on the date of this Agreement. The Tax Covenant shall come into effect on Completion. The Tax Warranties (Part 2 of Schedule 7) are given as of the date of this Agreement and as of the Completion Date (and at all times between the date of this Agreement and the Completion Date) as if they had been repeated at Completion immediately before the issuance of the PRIMOTOP Shares.

MPT's liability with respect to a Loss resulting from a matter, event, act or circumstance which results in any of the Warranties or Tax Warranties being untrue or inaccurate is subject to Completion and will be determined in accordance with the provisions of this Clause 10.

MPT shall not be liable for any Warranty Claim and/or Tax Claim unless a notice of the relevant claim is given by PRIMOTOP to MPT:

Any claim notified by PRIMOTOP to MPT pursuant to this Clause shall specify the matters set out in Clause 12.2.

MPT shall not be liable under this Agreement or the Tax Covenant in respect of any liability which is contingent unless and until such contingent liability becomes an actual liability and is due and payable.

 

 

28

---

 

 

MPT shall not be liable under this Agreement or the Tax Covenant in respect of any indirect or consequential Losses, including, for the avoidance of doubt, any loss of profits (other than loss of rent or loss in respect of punitive damages).

MPT shall not be liable for any Warranty Claim (excluding a Tax Claim, in respect of which the provisions of Schedule 7 shall apply) if and to the extent that provisions or reserves is made in the Completion Accounts for the matter giving rise to the claim or the liability was paid on or before Completion Date and the Completion Accounts reflected that payment and the Net Asset Value was reduced accordingly.

MPT shall not be liable for any Warranty Claim to the extent that the same would not have occurred but for:

MPT and PRIMOTOP shall procure, each within the limits of their powers under the Shareholders' Agreement, that all reasonable steps are taken to recover any Losses suffered by a Group Company pursuant to any relevant policy of insurance. MPT shall not be liable for any Warranty Claim and/or Tax Claim to the extent that the Losses suffered by a Group Company in respect of which such claim is made are covered, in whole or in part, by such policy of insurance and actual recovery is made under such policy of insurance.

 

 

29

---

 

 

PRIMOTOP shall not be entitled to recover from MPT under this Agreement or the Tax Covenant or the Shareholders’ Agreement more than once in respect of the same Losses or Indemnity Losses suffered and, without prejudice to the generality of the foregoing, MPT shall not be liable in respect of:

In circumstances where PRIMOTOP would have claims for recovery of any Losses, Taxes or Indemnity Losses under several provisions under this Agreement, the Tax Covenant and/or the Shareholders' Agreement, it is agreed and understood that PRIMOTOP shall be free to choose the basis on which it wants to recover. Without prejudice to the no double recovery principle set out in this Clause 10.9, PRIMOTOP may make use of one or more provisions available to it to make a claim.

MPT and PRIMOTOP shall procure that all reasonable steps are taken and all reasonable assistance is given (by them or by any of their Affiliates) to avoid or mitigate any Losses and/or Indemnity Losses which in the absence of mitigation might give rise to a liability in respect of any claim under this Agreement (including, for the avoidance of doubt, the Tax Covenant), to the extent of their respective powers in accordance with this Agreement, the Shareholders’ Agreement, the Articles and the Management Agreement.

None of the limitations contained in this Clause 10 or Part D of Schedule 7 shall apply to any claim which arises or is increased, or to the extent to which it arises or is increased, as the consequence of, or which is delayed as a result of, dishonest or deliberate misstatement, gross negligence or concealment or other fraud by MPT or any other member of the MPT Group.

 

 

30

---

 

 

MPT shall not be liable for any Indemnity Losses Claim unless a notice of the relevant claim is given by PRIMOTOP to MPT: (i) within a period of 7 years from the Completion Date if such claim does not relate to Tax; or (ii) if such claim relates to Tax, by no later than 31 January 2026.

MPT shall not be liable for any Indemnity Losses if and to the extent that provisions or reserves are made in the Completion Accounts for the matter giving rise to the claim or the liability was paid on or before the Completion Date and the Completion Accounts reflected that payment and the Net Asset Value was reduced accordingly.

 

 

31

---

 

 

MPT shall not be liable for any Indemnity Losses to the extent that the same would not have occurred but for:

MPT and PRIMOTOP, each within the limits of their powers under the Shareholders' Agreement, shall procure that all reasonable steps are taken to recover any Indemnity Losses suffered by a Group Company pursuant to any relevant policy of insurance. MPT shall not be liable for any Indemnity Losses to the extent that the Indemnity Losses suffered by a Group Company in respect of which such claim is made are covered, in whole or in part, by such policy of insurance and actual recovery is made under such policy of insurance.

 

 

32

---

 

 

If PRIMOTOP or any Group Company becomes aware of any fact, matter or circumstance that may give rise to a claim against MPT under this Agreement (other than a Tax Claim, in respect of which the provisions of the Tax Covenant shall apply), PRIMOTOP shall as soon as reasonably practicable give a notice in writing to MPT setting out such information as is reasonably necessary to enable MPT to assess the merits of the claim and a failure from PRIMOTOP to comply with this Clause 12.1 shall not have any effect on MPT's liability under such claim. For the avoidance of doubt, any notification of a potential claim shall suspend the time periods provided in Clause 10.2 with respect to the subject matter of such potential claim, until such day as a notification of claim, specifying all the elements listed in Clause 12.2 is capable of being made by PRIMOTOP.

Notices of claims under this Agreement or the Tax Covenant shall be given by PRIMOTOP to MPT within the time limits specified in Clause 10.2 and shall specify all reasonable information in relation to the legal and factual basis of the claim and the evidence on which PRIMOTOP relies and setting out, to the extent reasonably possible, PRIMOTOP’s estimate of the amount of Losses which is, or is to be, the subject of the claim (including any Losses which are contingent on the occurrence of any future event).

Any claim notified pursuant to Clause 12.2 shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn twelve months after the notice is given pursuant to Clause 12.2 unless at the relevant time legal proceedings in respect of the claim have been commenced by being both issued and served.

If a Warranty Claim is a result of, or is in connection with, a claim by or liability to a third party, MPT shall keep PRIMOTOP informed of the developments and progress of the claim and its defense and shall promptly provide PRIMOTOP, at its reasonable request, with a copy of all material notices, communications and filings (including court papers) relating to such claim and its defense.

 

 

33

---

 

 

Any payment by MPT under Clause 10, Clause 11 or under Schedule 7 (to the extent concerning Tax Warranties) is due within ten (10) Business Days after agreement by the Parties on the amount of such payment or final determination in accordance with Clause 16.13 of the amount due hereunder. For the avoidance of doubt, in relation to the Tax Covenant, Schedule 7 Part 3 Clause 1.2 shall prevail.

Where MPT makes a payment under Clause 10 or Clause 11 to PRIMOTOP, MPT’s liability under shall not be increased as a result of payment being made on an After Tax Basis in circumstances where PRIMOTOP is resident in, or attributes such payment to a permanent establishment or taxable presence in, a jurisdiction other than Luxembourg or has assigned its rights under this Agreement to another person to the intent that MPT should only be liable to the extent that it would have been liable had PRIMOTOP not been so resident, so attributed a payment or assigned its rights.

It is expressly agreed that in the event of a RETT Law Change or a RETT Law Change Announcement which would be likely, in the reasonable opinion of MPT (having regard to any RETT tax advice obtained by MPT), and (in the case of a RETT Law Change Announcement) on the assumption that legislation is enacted pursuant to such RETT Law Change Announcement, to result in: (a) RETT being triggered on the subscription by PRIMOTOP of the PRIMOTOP Shares pursuant to this Agreement; and/or (b) the applicable holding periods under the RETTA (under sec. 1 para 2a RETTA and sec. 5 and 6 RETTA including as those provisions may be amended or replaced) being extended from the current five (5) year period to a period of ten (10) or more years (calculated from the date of Completion) becoming applicable to any Pre-Completion Reorganisation or the Transaction, MPT shall have the right to terminate this Agreement prior to Completion with immediate effect (the "MPT Termination Right"), by way of serving written notice  to this effect to PRIMOTOP in accordance with the provisions of Clause 16.9 (the "MPT Termination Notice").

If MPT exercises the MPT Termination Right:

 

 

34

---

 

 

 

 

35

---

 

 

provided that prior to disclosure or use of any information pursuant to Clause 15.2(b)(i), (ii) or (iii), the Party concerned shall, where not prohibited by law, promptly notify the other Party of such requirement with a view to providing that other Party with the opportunity to contest such disclosure or use or otherwise to agree the timing and content of such disclosure or use.

 

 

36

---

 

 

None of the Parties may, without the prior written consent of the other, assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement or any other Transaction Document.

No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of MPT, PRIMOTOP and the Company.

Time shall be of the essence of this Agreement both as regards any dates, times and periods mentioned and as regards any dates, times and periods which may be substituted for them in accordance with this Agreement or by agreement in writing between MPT, PRIMOTOP and the Company.

 

 

37

---

 

 

If either of MPT or PRIMOTOP default in the payment when due of any sum payable under this Agreement, its liability shall be increased to include interest on such sum from the date when such payment is due until the date of actual payment (after as well as before judgment) at a rate per annum of 4% above the base rate from time to time of HSBC Bank plc. Such interest shall accrue from day to day and shall be compounded monthly.

Address:          1000 Urban Center Drive, Suite 501, 35242, Birmingham, Alabama, USA

Attention:          Steve Hamner

Address:            43-45 Allée Scheffer – 2520 Luxembourg

Attention:           Ronan Bodere

Address:           25, rue Philippe II, L-2340, Luxembourg, Grand Duchy of Luxembourg

Attention:           Luke Savage

 

 

38

---

 

 

No failure or delay by MPT, PRIMOTOP or the Company in exercising any right or remedy provided by law or under this Agreement or any Transaction Document shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy.

This Agreement may be entered into in any number of counterparts. Each counterpart is an original, but all of which taken together shall constitute one and the same instrument. Each of MPT, PRIMOTOP and the Company may enter into this Agreement by signing any such counterpart.  Delivery of a counterpart of this Agreement by e-mail attachment or telecopy shall be an effective mode of delivery.

 

 

 

39

---

 

 

 

 

 

 

 

40

Exhibit 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO RULE 13a-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, Edward K. Aldag, Jr., certify that:

 

 

Exhibit 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO RULE 13a-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, R. Steven Hamner, certify that:

 

 

Exhibit 31.3

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO RULE 13a-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, Edward K. Aldag, Jr., certify that:

 

 

Exhibit 31.4

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO RULE 13a-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, R. Steven Hamner, certify that:

 

 

Exhibit 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER

PURSUANT TO RULE 13a-14(b) UNDER THE SECURITIES EXCHANGE ACT OF 1934 AND 18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with this quarterly report on Form 10-Q of Medical Properties Trust, Inc. (the “Company”) for the quarter ended June 30, 2018 (the “Report”), each of the undersigned, Edward K. Aldag, Jr. and R. Steven Hamner, certifies, pursuant to Section 18 U.S.C. Section 1350, that:

 

 

Exhibit 32.2

CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER

PURSUANT TO RULE 13a-14(b) UNDER THE SECURITIES EXCHANGE ACT OF 1934 AND 18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with this quarterly report on Form 10-Q of MPT Operating Partnership, L.P. (the “Company”) for the quarter ended June 30, 2018 (the “Report”), each of the undersigned, Edward K. Aldag, Jr. and R. Steven Hamner, certifies, pursuant to Section 18 U.S.C. Section 1350, that: