MEDICAL PROPERTIES TRUST, INC.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 19, 2008
MEDICAL PROPERTIES TRUST, INC.
(Exact name of registrant as specified in its charter)
Commission File Number 001-32559
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Maryland
(State or other jurisdiction
of incorporation)
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20-0191742
(IRS. Employer
Identification No.) |
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1000 Urban Center Drive, Suite 501
Birmingham, AL
(Address of principal executive offices)
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35242
(Zip Code) |
Registrants telephone number, including area code
(205) 969-3755
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
UNDERWRITING AGREEMENT
On March 19, 2008, Medical Properties Trust, Inc. (the Company) and its subsidiary, MPT Operating
Partnership, L.P. (the Operating Partnership), entered into an Underwriting Agreement with UBS
Securities LLC, KeyBanc Capital Markets Inc., RBC Capital Markets
Corporation, J.P. Morgan
Securities Inc., Stifel, Nicolaus & Company, Incorporated
and FTN Midwest Securities Corp., pursuant to which the Company agreed to issue and sell to the underwriters an
aggregate of 11.0 million shares of common stock, par value $0.001 per share, of the Company. The
underwriters are offering all such shares of common stock to the public at a price per share of
$10.75. On March 24, 2008, UBS Securities LLC, on behalf of the
underwriters, exercised in full the underwriters option to
purchase up to an additional 1.65 million shares of common stock
solely for the purpose of covering over-allotments. The closing of the offering, which is subject to customary closing conditions, is expected
to occur on or about March 26, 2008. The foregoing is a summary description of certain terms of the Underwriting
Agreement and is qualified in its entirety by the text of the Underwriting Agreement attached as
Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
The
offering and sale of the shares of common stock have been registered under the Securities Act
of 1933, as amended, pursuant to the Companys effective shelf registration statement on Form S-3
(Registration No. 333-140433).
Certain of the underwriters and their affiliates have in the past provided and may from time to time
in the future provide commercial banking, financial advisory, investment banking and other services
to the Company and the Operating Partnership, for which they were and
will be entitled to receive separate fees. For example, certain of
the underwriters and their affiliates are the initial purchasers in a
concurrent private placement of exchangeable notes by the Operating
Partnership and certain of the underwriters and their affiliates are
lending banks under the Credit Agreement and Amendment (described
below), for which they will be entitled to separate fees.
FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
Effective as of March 19, 2008, the Operating Partnership, as Borrower, and the Company entered
into a first amendment (the Amendment) to the Revolving Credit and Term Loan Agreement (the
Credit Agreement) dated as of November 30, 2007, among the Operating Partnership, the Company,
JPMorgan Chase Bank, N.A., as Administrative Agent, and the several lenders from time to
time parties thereto. The Amendment is intended to permit the Company and Operating Partnership to
engage in certain sale, acquisition and financing transactions in connection with the Companys
previously announced purchase and sale transactions with Vibra Healthcare, LLC and the Companys
pending acquisition of a portfolio of healthcare properties from HCP, Inc. and its affiliates.
Specifically, the Amendment serves to permit the Company and Operating Partnership, without
violating the terms of the Credit Agreement, to (i) issue up to $143.75 million aggregate principal
amount of the Operating Partnerships exchangeable senior notes, (ii) enter into an interim loan
facility with a syndicate of lenders in an amount up to $300.0 million (as reduced by the aggregate
amount of exchangeable senior notes issued by the Operating Partnership), and (iii) complete the
previously reported sale of three hospital facilities to Vibra for aggregate proceeds of
approximately $90 million (plus a $7.0 million early termination fee and $10.0 million prepayment
on an existing loan).
Pursuant to the terms of the Amendment, the net proceeds received from any exchangeable senior
notes issuance must be used to fund a portion of the purchase price of the HCP portfolio
acquisition (including fees, commissions and expenses), repay any amounts outstanding under the
interim loan facility, or, if not used for either, to repay amounts outstanding under the Credit
Agreement. Proceeds from the interim loan facility must be used to fund a portion of the purchase
price of the acquisitions, including without limitation, the HCP portfolio acquisition. Net proceeds
received from the Vibra sale transaction must be used to either (1) fund a portion of the purchase
price of the HCP portfolio acquisition (including fees, commissions and expenses), (2) acquire
three other healthcare facilities to be operated by Vibra, also as previously announced, (3) repay
any amounts outstanding under the interim loan facility, or
(4) to the extent not used for (1) through (3) above, repay amounts outstanding under the
Credit Agreement.
The foregoing is a summary description of certain terms of the Amendment and is qualified in its
entirety by the text of the Amendment, which will be filed as an exhibit to the Companys Quarterly
Report on Form 10-Q for the period ended March 31, 2008.
Certain of the lending banks under the Credit Agreement and the Amendment and their affiliates have in
the past provided and may from time to time in the future provide commercial banking, financial
advisory, investment banking and other services to the Company and
the Operating Partnership, for which they were and will be entitled
to receive separate fees.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
1.1 Underwriting Agreement.
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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 hereunto duly authorized.
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MEDICAL PROPERTIES TRUST, INC.
(Registrant)
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By: |
/s/ R. Steven Hamner
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R. Steven Hamner |
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Executive Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer) |
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Date: March 25, 2008
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EX-1.1 UNDERWRITING AGREEMENT
Exhibit
1.1
EXECUTION VERSION
MEDICAL PROPERTIES TRUST, INC.
11,000,000 Shares
Common Stock
($0.001 par value per Share)
Underwriting Agreement
March 19, 2008
Underwriting Agreement
March 19, 2008
UBS Securities LLC
KeyBanc Capital Markets Inc.
RBC Capital Markets Corporation
J.P. Morgan Securities Inc.
Stifel, Nicolaus & Company, Incorporated
FTN Midwest Securities Corp.
as Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Medical Properties Trust, Inc., a Maryland corporation (the Company), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
Underwriters), for whom you are acting as a representative (in such capacity, the
Representative), an aggregate of 11,000,000 shares (the Firm Shares) of common
stock, par value $0.001 per share, of the Company (the Common Stock). In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to the Underwriters the
option to purchase from the Company up to an additional 1,650,000 shares of Common Stock (the
Additional Shares). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the Securities. References herein to you shall
refer to the Representative.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the Act), with
the Securities and Exchange Commission (the Commission) a registration statement on Form
S-3 (File No. 333-140433) under the Act (the registration statement), including a
prospectus, which registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the Exchange Act).
Amendments to such registration statement, if necessary or appropriate, have been similarly
prepared and filed with the Commission in accordance with the Act. Such registration statement, as
so amended, has become effective under the Act.
Except where the context otherwise requires, Registration Statement, as used herein,
means the registration statement, as amended at the time of such registration statements
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the Effective Time), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to Rule 430A, Rule 430B or
Rule 430C under the Act, to be part of the registration statement at the Effective Time, and (iii)
any registration statement filed to register the offer and sale of Securities pursuant to Rule
462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Securities, copies of one or more preliminary prospectus supplements
relating to the Securities. Except where the context otherwise requires, Pre-Pricing
Prospectus, as used herein, means each such preliminary prospectus supplement, in the form so
furnished, including any basic prospectus (whether or not in preliminary form) furnished to you by
the Company and attached to or used with such preliminary prospectus supplement. Except where the
context otherwise requires, Basic Prospectus, as used herein, means any such basic
prospectus and any basic prospectus furnished to you by the Company and attached to or used with
the Prospectus Supplement (as defined below).
Except where the context otherwise requires, Prospectus Supplement, as used herein,
means the final prospectus supplement, relating to the Securities, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Securities.
Except where the context otherwise requires, Prospectus, as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus
Supplement.
Permitted Free Writing Prospectuses, as used herein, means the documents listed on
Schedule B attached hereto and each road show (as defined in Rule 433 under the Act), if
any, related to the offering of the Securities contemplated hereby that is a written
communication (as defined in Rule 405 under the Act). The Underwriters have not offered or sold
and will not offer or sell, without the Companys consent, any Securities by means of any free
writing prospectus (as defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other than a Permitted Free
Writing Prospectus.
Disclosure Package, as used herein, means any Pre-Pricing Prospectus or Basic
Prospectus, in either case together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any, plus the items listed on Schedule C attached hereto.
Any reference herein to the registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated
by reference therein (the Incorporated Documents), including, unless the context
otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any
reference herein to the terms amend, amendment or supplement with
respect to the Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to
refer to
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and include the filing of any document under the Exchange Act on or after the initial effective
date of the Registration Statement, or the date of such Basic Prospectus, such Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as
the case may be, and incorporated therein by reference.
As used in this Agreement, business day shall mean a day on which the New York Stock
Exchange (the NYSE) is open for trading. The terms herein, hereof, hereto,
hereinafter and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term or, as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company the number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto, subject to adjustment in accordance with Section 8 hereof,
in each case at a purchase price of $10.75 per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares
as soon after the effectiveness of this Agreement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the initial public offering to such
extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the option (the
Over-Allotment Option) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company, ratably in accordance with the
number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as
may be necessary to cover over-allotments made in connection with the offering of the Firm Shares,
at the same purchase price per share to be paid by the Underwriters to the Company for the Firm
Shares. The Over-Allotment Option may be exercised by the Representative on behalf of the several
Underwriters at any time and from time to time on or before the thirtieth day following the date of
the Prospectus Supplement, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is being exercised and
the date and time when the Additional Shares are to be delivered (any such date and time being
herein referred to as an additional time of purchase); provided, however,
that no additional time of purchase shall be earlier than the time of purchase (as defined below)
nor earlier than the second business day after the date on which the Over-Allotment Option shall
have been exercised nor later than the tenth business day after the date on which the
Over-Allotment Option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as the Representative may determine to
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eliminate fractional shares), subject to adjustment in accordance with Section 8 hereof. Additional
Shares may be purchased by the Underwriters solely to cover over-allotments.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (DTC) for the
respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on March 26, 2008 (unless another time shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 8 hereof) (Closing
Date). The time at which such payment and delivery are to be made is hereinafter sometimes
called the time of purchase. Electronic transfer of the Firm Shares shall be made to you
at the time of purchase in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Securities shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP at Four Times
Square, New York, New York 10036, at 9:00 A.M., New York City time, on the date of the closing of
the purchase of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company and the Operating Partnership. The
Company and MPT Operating Partnership, L.P., a Delaware limited partnership and majority owned
subsidiary of the Company (the Operating Partnership), represent and warrant to and agree with
each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of
Securities pursuant to Rule 462(b) under the Act, will be filed with the Commission and
become effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Securities; no stop order of the
Commission preventing or suspending the use of any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Companys knowledge, are
contemplated by the Commission;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Securities, will comply, in all material
respects, with the requirements of the Act; the conditions to the use of
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Form S-3 in connection with the offering and sale of the Securities as contemplated
hereby have been satisfied; the Registration Statement meets, and the offering and sale of
the Securities as contemplated hereby complies with, the requirements of Rule 415 under the
Act (including, without limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was
filed with the Commission, and complies as of the date hereof, in all material respects with
the requirements of the Act; at no time during the period that begins on the earlier of the
date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with
the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as
then amended or supplemented, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no time during such period
did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing Prospectuses, if any,
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; each Basic Prospectus complied or will comply, as of its date and
the date it was or will be filed with the Commission, complies as of the date hereof (if
filed with the Commission on or prior to the date hereof) and, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Securities, will comply, in all
material respects, with the requirements of the Act; at no time during the period that
begins on the earlier of the date of such Basic Prospectus and the date such Basic
Prospectus was filed with the Commission and ends at the time of purchase did or will any
Basic Prospectus, as then amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and at no time
during such period did or will any Basic Prospectus, as then amended or supplemented,
together with any combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each of the Prospectus Supplement
and the Prospectus will comply, as of the date that it is filed with the Commission, the
date of the Prospectus Supplement, the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
in connection with any sale of Securities, in all material respects, with the requirements
of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of
the Act); at no time during the period that begins on the earlier of the date of the
Prospectus Supplement and the date the Prospectus Supplement is filed with the Commission
and ends at the later of the time of purchase, the latest additional time of purchase, if
any, and the end of the period during which a
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prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Securities did or will any Prospectus Supplement or the Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; at no time during the period that begins on the
date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will
any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty in this Section 3(b)
with respect to any statement contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in the Registration
Statement, such Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing
Prospectus; each Incorporated Document, at the time such document was filed or will be filed
with the Commission or at the time such document became or becomes effective, as applicable,
complied or will comply, in all material respects, with the requirements of the Exchange Act
and did not or will not, when taken together with all other Incorporated Documents, include
an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Securities by means of any prospectus (within the meaning
of the Act) or used any prospectus (within the meaning of the Act) in connection with the
offer or sale of the Securities, in each case other than the Pre-Pricing Prospectuses and
the Permitted Free Writing Prospectuses, if any; the Company has not, directly or
indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in
compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing
Prospectus is accompanied or preceded by the most recent Pre-Pricing Prospectus or the
Prospectus, as the case may be, and that such Permitted Free Writing Prospectus is so sent
or given after the Registration Statement was filed with the Commission (and after such
Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act,
filed with the Commission), the sending or giving, by any Underwriter, of any Permitted Free
Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the Pre-Pricing Prospectus dated March 14, 2008
is a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies
the requirements of Section 10 of the Act, including a price range where required by rule;
neither the Company nor the Underwriters are disqualified, by reason of subsection (f) or
(g) of Rule 164 under the Act, from using, in connection with the offer and sale of the
Securities, free writing prospectuses (as defined in Rule 405 under the Act) pursuant to
Rules 164 and 433 under the Act; the Company is not an ineligible issuer (as defined in
Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164
and 433 under
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the Act with respect to the offering of the Securities contemplated by the Registration
Statement; the parties hereto agree and understand that the content of any and all road
shows (as defined in Rule 433 under the Act) related to the offering of the Securities
contemplated hereby is solely the property of the Company;
(d) as of the date of this Agreement, the Company has an authorized capitalization as
set forth in the sections of the Registration Statement, the Pre-Pricing Prospectuses and
the Prospectus entitled Capitalization and Description of capital stock (and any similar
sections or information, if any, contained in any Permitted Free Writing Prospectus), and,
as of the time of purchase and any additional time of purchase, as the case may be, the
Company shall have an authorized capitalization as set forth in the sections of the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus entitled
Capitalization and Description of capital stock (and any similar sections or
information, if any, contained in any Permitted Free Writing Prospectus) (subject, in each
case, to the issuance of shares of Common Stock upon exercise of stock options and warrants,
or the exercise, conversion or redemption of any other equity-based compensatory awards,
disclosed as outstanding in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, the grant of options and other equity-based
awards under existing stock option and other equity-based compensatory plans described in
the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and
the Prospectus), and the issuance of shares of Common Stock, if any, resulting from the
exercise of exchange rights pursuant to exchangeable senior notes issued by the Operating
Partnership as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus, the Prospectus and the preliminary offering memorandum dated
March 14, 2008, as amended or supplemented, in connection with the Operating Partnerships
concurrent offering of its exchangeable senior notes); all of the issued and outstanding
shares of capital stock, including the Common Stock, of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right; application has
been, or will be, made to list the Securities on the New York Stock Exchange (the NYSE),
and as of the time of purchase, the Securities shall be duly listed, and admitted and
authorized for trading, subject to official notice of issuance;
(e) the Company has been duly incorporated and is validly existing as a corporation
under the laws of the State of Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland, with full corporate power and authority to own, lease
and operate its properties and conduct its business as described in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, to execute and deliver this Agreement and to issue, sell and deliver
the Securities as contemplated herein;
(f) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
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qualified and in good standing would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and the Subsidiaries (as
defined below) taken as a whole, or prevent or materially interfere with consummation of the
transactions contemplated hereby (a Material Adverse Effect);
(g) the Company has no subsidiaries (as defined under the Act) other than Medical
Properties Trust LLC, MPT Development Services, Inc., MPT Finance Company, LLC, MPT
Operating Partnership, L.P., 92 Brick Road, LLC, 1300 Campbell Lane, LLC, 4499 Acushnet
Avenue, LLC, 7173 North Sharon Avenue, LLC, 8451 Pearl Street, LLC, MPT of Bucks County,
LLC, MPT of Bucks County, L.P., MPT of Covington, LLC, MPT of Denham Springs, LLC, MPT of
Bloomington, LLC, MPT of North Cypress, LLC, MPT of North Cypress, L.P., MPT of Redding,
LLC,; MPT of Sherman Oaks, LLC, MPT of Dallas LTACH, LLC, MPT of Dallas LTACH, L.P., MPT of
Montclair, LLC, MPT of Montclair, L.P., MPT of Portland, LLC, MPT of Warm Springs, LLC, MPT
of Warm Springs, L.P., MPT of Victoria, LLC, MPT of Victoria, L.P., MPT of Luling, LLC, MPT
of Luling, L.P., MPT of Huntington Beacon, LLC, MPT of Huntington Beach, L.P., MPT of West
Anaheim, LLC, MPT of West Anaheim, L.P., MPT of La Palma, LLC, MPT of La Palma, L.P., MPT of
Paradise Valley, LLC, MPT of Paradise Valley, L.P., MPT of Twelve Oaks, LLC, MPT of Twelve
Oaks, L.P., MPT of Shasta, LLC, MPT of Shasta, L.P., MPT of Inglewood, LLC, MPT of
Inglewood, L.P., MPT of Victorville, LLC, MPT of Chino, LLC, MPT of Centinela, LLC, MPT of
Centinela, L.P., MPT of Southern California, LLC, MPT of Southern California, L.P., MPT of
California, LLC, MPT West Houston Hospital, LLC, MPT West Houston Hospital, L.P., MPT West
Houston MOB, LLC, MPT West Houston Hospital MOB, L.P., San Joaquin Health Care Associates
Limited Partnership, MPT of Anaheim, LLC, MPT of Anaheim, L.P., MPT of West Valley City,
LLC, MPT of Idaho Falls, LLC, MPT of Poplar Bluff, LLC, MPT of Cheraw, LLC, MPT of
Bennettsville, LLC, MPT of Cleveland, L.P., MPT of Cleveland, LLC, MPT of Bossier City, LLC,
MPT of Webster, L.P., MPT of Webster, LLC, MPT of Tucson, LLC, MPT of Morgantown, LLC, MPT
of Fayetteville, LLC, MPT of Ft. Lauderdale, LLC, MPT of Wichita, LLC, MPT of Petersburg,
LLC, MPT of San Diego, L.P., MPT of San Diego, LLC, MPT of San Bernardino, L.P., and MPT of
San Bernardino, LLC (collectively, the Subsidiaries); the Company owns, directly or
indirectly, all of the issued and outstanding capital stock or other ownership interest of
each of the Subsidiaries, other than MPT Operating Partnership, L.P. and MPT West Houston
MOB, L.P., of which the Company owns, directly or indirectly, a majority of the limited
partnership units; other than the capital stock or other ownership interest of the
Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any
other equity interests or long-term debt securities of any corporation, firm, partnership,
joint venture, association or other entity; complete and correct copies of the charters and
the bylaws of the Company and each Subsidiary and all amendments thereto have been delivered
to you, and no changes therein will be made on or after the date hereof through and
including the time of purchase or, if later, any additional time of purchase; each
Subsidiary has been duly formed and is validly existing as a corporation, limited liability
company or limited partnership in good standing under the laws of the jurisdiction of its
incorporation or organization, with full
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corporate or other power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, except
where the failure to be so in good standing would not, individually or in the aggregate,
have a Material Adverse Effect; each Subsidiary is duly qualified to do business as a
foreign corporation, limited liability company or limited partnership and is in good
standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have a Material
Adverse Effect; all of the outstanding shares of capital stock or other ownership interests
of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable securities laws, were not
issued in violation of any preemptive right, resale right, right of first refusal or similar
right and are owned, directly or indirectly, by the Company subject to no security interest,
other encumbrance or adverse claims, except where such security interests, other
encumbrances or adverse claims would not materially affect or interfere in any material
respect with the Companys ability to exercise control over each of its Subsidiaries; and no
options, warrants or other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligation into shares of capital stock or ownership interests
in the Subsidiaries are outstanding;
(h) the Securities have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights;
(i) the capital stock of the Company, including the Securities, conforms in all
material respects to each description thereof, if any, contained or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any; and the certificates for the Securities are
in due and proper form;
(j) this Agreement has been duly authorized, executed and delivered by the Company and
the Operating Partnership;
(k) neither the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holders behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (A) its
respective charter or bylaws, or other organizational documents, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or
any license, lease, contract or other agreement or instrument to which it is a party or any
of the Subsidiaries is a party or by which any of them or any of their respective properties
may be bound or affected, or (C) any federal, state, local or foreign law, regulation or
rule, or (D) any rule or regulation of any self-regulatory organization or
- 9 -
other non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE), or (E) any decree, judgment or order applicable to the Company
or any of the Subsidiaries or any of their respective properties; except with respect to
clauses (B) through (E) only for any such breach or violation or default that would not
reasonably be expected to have a Material Adverse Effect;
(l) the execution, delivery and performance of this Agreement, the issuance and sale of
the Securities, the consummation of the transactions contemplated hereby will not conflict
with, result in any breach or violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person acting on
such holders behalf) the right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary pursuant
to) (A) the charter or bylaws, or other organizational document, of the Company or any of
the Subsidiaries or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of
any self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NYSE), or (E) any decree, judgment or
order applicable to the Company or any of the Subsidiaries or any of their respective
properties; except with respect to clauses (B) through (E) only for any such breach or
violation or default that would not reasonably be expected to have a Material Adverse
Effect;
(m) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NYSE), or approval of the stockholders of the Company,
is required in connection with the issuance and sale of the Securities or the consummation
by the Company of the transactions contemplated by this Agreement, other than (i)
registration of the Securities under the Act, which has been effected (or, with respect to
any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will
be effected in accordance herewith), (ii) any necessary qualification under the securities
or blue sky laws of the various jurisdictions in which the Securities are being offered by
the Underwriters or (iii) those that have been obtained or will be obtained or completed by
the time of purchase; and (iv) those the absence of which would not reasonably be expected
to have a Material Adverse Effect;
(n) except as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus, the Prospectus and the preliminary offering memorandum, dated
March 14, 2008, as amended or supplemented, in connection with the Operating Partnerships
concurrent offering of its exchangeable senior notes, (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to it
- 10 -
any shares of Common Stock or shares of any other capital stock or other equity
interests of the Company, except such rights that have been granted pursuant to the
Companys equity incentive plan, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of Common Stock or shares of
any other capital stock of or other equity interests in the Company, (iii) no person has the
right to act as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Securities and (iv) no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common Stock or
shares of any other capital stock of or other equity interests in the Company, or to include
any such shares or interests in the Registration Statement or the offering contemplated
thereby;
(o) except as set forth in the Registration Statement, there are no actions, suits,
claims, investigations or proceedings pending or, to the Companys or the Operating
Partnerships knowledge, threatened or contemplated to which the Company or any of the
Subsidiaries or any of their respective directors or officers is or would be a party or of
which any of their respective properties is or would be subject at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency, or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NYSE), except any
such action, suit, claim, investigation or proceeding which, if resolved adversely to the
Company or any Subsidiary, would not, individually or in the aggregate, have a Material
Adverse Effect or prevent or materially interfere with consummation of the transactions
contemplated hereby;
(p) KPMG LLP, whose report on the consolidated financial statements of the Company and
the Subsidiaries is included or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent registered public accountants
as required by the Act and by the rules of the Public Company Accounting Oversight Board;
(q) Moss Adams LLP, whose report on the consolidated financial statements of Prime
Healthcare Systems and its subsidiaries, is included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus, are independent
registered public accountants as required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(r) the consolidated financial statements of the Company included or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, together with the related notes and
schedules, present fairly the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of operations, cash
flows and changes in stockholders equity of the Company for the periods specified and have
been prepared in compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles applied on a consistent basis
during the periods involved; the other financial and statistical data with respect to the
Company and the Subsidiaries contained or incorporated by reference in
- 11 -
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are accurately and fairly presented and, other than certain financial
data relating to the HCP acquisition described therein presented on a cash basis in the
Pre-Pricing Prospectus and Prospectus, prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in
the Registration Statement, any Pre-Pricing Prospectus or the Prospectus that are not
included or incorporated by reference as required; the Company and the Subsidiaries do not
have any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in
the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus; and all disclosures
contained or incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, regarding
non-GAAP financial measures (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Act, to the extent applicable;
(s) subsequent to the respective dates as of which information is given in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any
material change in the capital stock or outstanding indebtedness of the Company or any
Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary;
(t) the Company has obtained for the benefit of the Underwriters the agreement (a
Lock-Up Agreement), in the form set forth as Exhibit A hereto, of certain
of its directors and officers (within the meaning of Rule 16a-1(f) under the Exchange Act);
(u) neither the Company nor any Subsidiary is, and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof, none of them will
be, an investment company or an entity controlled by an investment company, as such
terms are defined in the Investment Company Act of 1940, as amended (the Investment
Company Act);
(v) except as would not reasonably be excepted to have a Material Adverse Effect, (A)
each of the Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
- 12 -
patents, trademarks (both registered and unregistered), tradenames, service names,
copyrights, trade secrets and other proprietary information described in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned or licensed by them or which are necessary for the
conduct of, or material to, their respective businesses as currently conducted
(collectively, Intellectual Property), and (B) the Company is not aware of any
claim to the contrary or any challenge by any other person to the rights of the Company or
any of the Subsidiaries with respect to the Intellectual Property;
(w) to the knowledge of the Company and the Operating Partnership, neither the Company
nor any of the Subsidiaries has infringed or is infringing the intellectual property of a
third party, and neither the Company nor any Subsidiary has received notice of a claim by a
third party to the contrary, except for any such notice that would not reasonably be
expected to have a Material Adverse Effect;
(x) except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending or, to
the Companys knowledge, threatened against the Company or any of the Subsidiaries before
the National Labor Relations Board, and no grievance or arbitration proceeding arising out
of or under collective bargaining agreements is pending or, to the Companys knowledge,
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Companys
knowledge, threatened against the Company or any of the Subsidiaries and (C) no union
representation dispute currently existing concerning the employees of the Company or any of
the Subsidiaries, (ii) to the Companys knowledge, no union organizing activities are
currently taking place concerning the employees of the Company or any of the Subsidiaries
and (iii) there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income Security Act of 1974 (ERISA) or
the rules and regulations promulgated thereunder concerning the employees of the Company or
any of the Subsidiaries;
(y) the Company and the Subsidiaries and their respective properties, assets and
operations, and to the knowledge of the Company each tenant of the Properties, are in
compliance with, and the Company and each of the Subsidiaries, and to the knowledge of the
Company each tenant of the Properties, hold all permits, authorizations and
approvals required under Environmental Laws (as defined below), except to the extent
that failure to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are no past or
present conditions, circumstances, activities, practices, actions or omissions that would
reasonably be expected to give rise to any material costs or liabilities to the Company or
any Subsidiary under, or to interfere with or prevent material compliance by the Company or
any Subsidiary with, Environmental Laws; except as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company nor any of the Subsidiaries
(i) is the subject of any investigation, (ii) has received any notice or written claim,
(iii) is a party to or affected by any pending or, to the Companys knowledge, threatened
action, suit or proceeding, (iv) is bound by any judgment, decree or order or
- 13 -
(v) has entered into any agreement, in each case relating to any alleged violation of
any Environmental Law or any actual or alleged release or threatened release or cleanup at
any location of any Hazardous Materials (as defined below) (as used herein,
Environmental Law means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to the protection,
cleanup or restoration of the environment or natural resources, including those relating to
the distribution, processing, generation, treatment, storage, disposal, transportation,
other handling or release or threatened release of Hazardous Materials, and Hazardous
Materials means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise to liability
under any Environmental Law);
(z) to the knowledge of the Company and the Operating Partnership, there are no costs
or liabilities associated with any Environmental Law (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or compliance
with any Environmental Law or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(aa) to the knowledge of the Company and the Operating Partnership, none of the
entities which prepared appraisals of the Properties, nor the entities which prepared Phase
I or other environmental assessments with respect to the Properties, was employed for such
purpose on a contingent basis or has any substantial interest in the Company or any of the
Subsidiaries, and none of their directors, officers or employees is connected with the
Company or any of the Subsidiaries as a promoter, selling agent, officer, director or
employee;
(bb) each of the Company and the Subsidiaries have timely filed all material tax
returns required to be filed through the date hereof or have properly requested extensions
thereof, and all material taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have been timely paid, other
than those being contested in good faith and for which adequate
reserves have been provided;
(cc) the Company and each of the Subsidiaries maintain or arrange for insurance
covering their respective properties, operations, personnel and businesses as the Company
reasonably deems adequate; such insurance insures against such losses and risks to an extent
which is adequate in accordance with customary industry practice to protect the Company and
the Subsidiaries and their respective businesses; to the knowledge of the Company and the
Operating Partnership, all such insurance is fully in force on the date hereof;
(dd) neither the Company nor any Subsidiary has sent or received any
- 14 -
communication regarding termination of, or intent not to renew, any of the material
contracts or agreements referred to or described in any Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, or referred to or described in, or
filed as an exhibit to, the Registration Statement or any Incorporated Document, and no such
termination or non-renewal has been threatened by the Company or any Subsidiary or, to the
Companys knowledge, any other party to any such contract or agreement, except for any
communication regarding such termination or non-renewal which would not reasonably be
expected to have a Material Adverse Effect;
(ee) the Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with managements general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with managements general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences;
(ff) the Company has established and maintains and evaluates disclosure controls and
procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
internal control over financial reporting (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Companys Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the Companys
independent auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Companys ability to record, process,
summarize and report financial data; and (ii) all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Companys internal
controls; all material weaknesses, if any, in internal controls have been identified to the
Companys independent auditors; since the date of the most recent evaluation of such
disclosure controls and, procedures and internal controls,
there have been no significant changes in internal controls or in other factors that
could significantly affect internal controls, including any corrective actions with regard
to significant deficiencies and material weaknesses; the principal executive officers (or
their equivalents) and principal financial officers (or their equivalents) of the Company
have made all certifications required by the Sarbanes-Oxley Act of 2002 (the
Sarbanes-Oxley Act) and any related rules and regulations promulgated by the
Commission, and the statements contained in each such certification are complete and
correct; the Company, the Subsidiaries and the Companys directors and officers are each in
compliance in all material respects with all applicable effective provisions of the
Sarbanes-Oxley Act and the rules and regulations of the Commission and the NYSE promulgated
thereunder;
- 15 -
(gg) each forward-looking statement (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable basis and in good faith;
(hh) all statistical or market-related data included or incorporated by reference in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the written consent to
the use of such data from such sources to the extent required;
(ii) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company or the Operating Partnership, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or received or retained any
funds in violation of any law, rule or regulation (including, without limitation, the
Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a
character required to be disclosed in the Registration Statement, any Pre-Pricing Prospectus
or the Prospectus;
(jj) no Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiarys capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiarys property or assets to the Company or
any other Subsidiary of the Company, except as described in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus;
(kk) the issuance and sale of the Securities as contemplated hereby will not cause any
holder of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase capital stock
or any other securities of the Company to have any right to acquire any shares of preferred
stock of the Company;
(ll) the Company has not received any notice from the NYSE regarding the
delisting of the Common Stock from the NYSE;
(mm) except pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has incurred any liability for any finders or brokers fee or agents commission in
connection with the execution and delivery of this Agreement, or the consummation of the
transactions contemplated hereby or by the Registration Statement;
(nn) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected
- 16 -
to cause or result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities;
(oo) to the knowledge of the Company and the Operating Partnership and except as
previously disclosed in property condition reports provided to the Underwriters or their
legal counsel, all real property owned or leased by the Company or any Subsidiary, whether
owned in fee simple or through a joint venture or other partnership (each, a Property and
collectively the Properties), (i) is free of any material structural defects and all
building systems contained therein are in good working order in all material respects,
subject to ordinary wear and tear or (ii) in each instance, the Company or any Subsidiary,
as the case may be, has either caused tenant to be responsible for such matters or has
created or caused to be created an adequate reserve or capital budget to effect reasonably
required repairs, maintenance and capital expenditures; water, storm water, sanitary sewer,
electricity and telephone service are all available at the property lines of such property
over duly dedicated streets or perpetual easements of record benefiting such property; to
the knowledge of the Company and the Operating Partnership, no notice of any pending or
threatened special assessment, tax reduction proceeding or other action that could
reasonably be expected to have a Material Adverse Effect has been received;
(pp) each of the Company and the Subsidiaries has all necessary licenses, permits,
authorizations, consents and approvals, possess valid and current certificates, has made all
necessary filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other persons,
required in order to conduct their respective businesses and own their respective properties
and other assets as described in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, except to the extent
that any failure to have any such licenses, permits, authorizations, consents or approvals,
to make any such filings or to obtain any such authorizations, consents or approvals,
individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect; each tenant or proposed tenant of the Properties has all necessary licenses,
permits, authorizations, consents and approvals, possess valid and current certificates, and
is required under the lease to make all necessary filings required under any federal, state
or local law, regulation or rule and obtain all necessary authorizations, consents and
approvals from other persons, required in order to conduct their respective businesses and
own their respective properties and other assets as
described in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, and to the knowledge of the Company and
the Operating Partnership, each tenant or proposed tenant of the Properties has made all
such filings and obtained all such authorizations, consents and approvals, if any, as
required under the lease, except to the extent that any failure to have any such licenses,
permits, authorizations, consents or approvals, to make any such filings or to obtain any
such authorizations, consents or approvals, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; except as disclosed in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, neither the Company nor any of the Subsidiaries and to
- 17 -
the best knowledge of the Company and the Operating Partnership; each tenant or
proposed tenant of the Properties is required by any applicable law to obtain accreditation
or certification from any governmental agency or authority in order to conduct the business
or own the properties and other assets which it currently provides or owns or which it
proposes to provide or own as described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, except
such accreditations and certifications described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, all of which have been obtained; neither the Company nor any of the Subsidiaries and to
the best knowledge of the Company and the Operating Partnership, each tenant or proposed
tenant of the Properties is in violation of, or in default under, or has received any
written notice regarding a possible violation, default or revocation of any such
certificate, license, permit, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or judgment applicable to the
Company or any of the Subsidiaries the effect of which, individually or in the aggregate,
would result in a Material Adverse Effect;
(qq) the Company and the Subsidiaries have good and marketable title in fee simple to
all real property, and good title to all personal property, owned by them, in each case free
and clear of all liens, claims, security interests, pledges, charges, encumbrances,
encroachments, restrictions, mortgages and other defects, except such as are disclosed in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, or listed as an exception to any owners or leasehold
title insurance policy with respect to such real property and personal property made
available by the Company to the Underwriters or their counsel or such as do not materially
and adversely affect the value of such property and do not materially interfere with the use
made or proposed to be made of such property by the Company and the Subsidiaries; any real
property, improvements, equipment and personal property held under lease by the Company or
any Subsidiary are held under valid, existing and enforceable leases, with such exceptions
as are disclosed in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, or are not material and do not
interfere with the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company or such Subsidiary; the Company or a
Subsidiary has obtained an owners or leasehold title insurance policy, from a title
insurance company licensed to issue such policy, on any real property owned in fee or
leased, as the case may be, by the
Company or any Subsidiary, that insures the Companys or the Subsidiarys fee or
leasehold interest, as the case may be, in such real property, or a lenders title insurance
policy insuring the lien of its mortgage securing the real property with coverage equal to
the maximum aggregate principal amount of any indebtedness held by the Company or a
Subsidiary and secured by the real property;
(rr) each of the properties listed in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as a
property with respect to which the Company or one of its Subsidiaries has a leasehold
interest is the subject of a lease that has been duly and validly authorized, executed and
- 18 -
delivered by or on behalf of the Company or a Subsidiary, and to the knowledge of the
Company, by each of the other parties thereto and each such lease constitutes a valid and
binding agreement of the parties thereto, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors rights generally or by general principles of equity;
(ss) there are no real property interests or loans in respect of real property that any
of the Company and the Subsidiaries directly or indirectly intends to acquire, lease,
originate or underwrite or any contracts, letters of intent, term sheets, agreements,
arrangements or understandings with respect to the direct or indirect acquisition,
disposition, origination or underwriting by the Company or the Subsidiaries of interests in
real property or loans in respect of real property that are required to be described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, and are not so described;
(tt) to the knowledge of the Company and the Operating Partnership, each of the
Properties complies with all applicable zoning laws, ordinances, regulations and deed
restrictions or other covenants in all material respects or, if and to the extent there is a
failure to comply, such failure does not materially impair the value of any of the
Properties and will not result in a forfeiture or reversion of title; to the knowledge of
the Company and the Operating Partnership, there is no pending or threatened condemnation,
zoning change or other similar proceeding or action that will in any material respect affect
the size or use of, improvements on, or construction on or access to the Properties, except
such zoning changes, proceedings or actions that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company
and the Operating Partnership, no lessee of any portion of any of the Properties is in
default under any of the leases governing such properties and there is no event which, but
for the passage of time or the giving of notice or both would constitute a default under any
of such leases, except such defaults that would not reasonably be expected to have a
Material Adverse Effect; and except as disclosed in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, no tenant under any lease pursuant to which any of the Subsidiaries leases the
Properties has an option or right of first refusal to purchase the premises leased
thereunder or the building of which such premises are a part, except as such options or
rights of first refusal which, if exercised, would not reasonably be expected to have a
Material Adverse Effect;
(uu) the mortgages and deeds of trust encumbering the real property owned by the
Company and its Subsidiaries are not convertible nor will the Company hold a participating
interest therein and such mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property not to be owned directly or indirectly by the Company
or the Subsidiaries;
(vv) the Company has qualified to be taxed as a real estate investment trust pursuant
to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
Code) for all taxable years ended on or prior to December 31, 2007, beginning
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with its taxable year that began on April 6, 2004 and ended on December 31, 2004, and
its current and proposed method of operation as described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, will enable the Company to continue to meet the requirements for qualification and
taxation as a real estate investment trust under the Code for its taxable year ending
December 31, 2008 and thereafter; all statements in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, regarding the Companys qualification and taxation as a real estate investment trust
are correct in all material respects; the Company presently intends to continue to qualify
as a real estate investment trust under the Code this year and for all subsequent years, and
the Company does not know of any event that would cause or is likely to cause the Company to
fail to qualify as a real estate investment trust under the Code for the taxable year ending
December 31, 2008 or anytime thereafter;
(ww) the Operating Partnership is and has been at all times classified as a partnership
or disregarded entity, and not as an association or partnership taxable as a corporation,
for federal income tax purposes; and
(xx) the Company was at all times from its formation on August 27, 2003 through April
6, 2004 an S corporation within the meaning of Section 1361(a)(1) of the Code.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed to be a representation and warranty by the Company or such
Subsidiary, as to matters covered thereby, to each Underwriter.
4. Certain Covenants of the Company and the Operating Partnership. The Company and
the Operating Partnership hereby agree:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Securities for offering and sale under the securities or blue sky laws of
such states or other jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws of any such
jurisdiction or to take any
action that would subject it to service of process in suits in any jurisdiction where
it is not now subject (except service of process with respect to the offering and sale of
the Securities); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for offer
or sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
- 20 -
supplements thereto after the effective date of the Registration Statement), and any
documents incorporated by reference therein, as the Underwriters may reasonably request for
the purposes contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule),
in connection with the sale of the Securities, a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to
the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the
Act, the Company will prepare, at its expense, promptly upon request such amendment or
amendments to the Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation
S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will use its best efforts to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible; and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Securities, the Registration Statement shall
cease to comply with the requirements of the Act with respect to eligibility for the use of
the form on which the Registration Statement was filed with the Commission, to (i) promptly
notify you, (ii) promptly file with the Commission a new registration statement under the
Act, relating to the Securities, or a post-effective amendment to the Registration
Statement, which new registration statement or post-effective amendment shall comply with
the requirements of the Act and shall be in a form satisfactory to you, (iii) use its best
efforts to cause such new registration statement or post-effective amendment to become
effective under the Act as soon as practicable, (iv) promptly notify you of such
effectiveness and (v) take all other action necessary or appropriate to permit
the public offering and sale of the Securities to continue as contemplated in the
Prospectus; all references herein to the Registration Statement shall be deemed to include
each such new registration statement or post-effective amendment, if any;
(e) to advise you promptly, confirming such advice in writing, at any time during the
period when a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Securities, of any request by the Commission for amendments or supplements to the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus or for additional information
- 21 -
with respect thereto, or of notice of institution of proceedings for, or the entry of a
stop order, suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(f) subject to Section 4(e) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Securities; and to provide
you, for your review and comment, with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed filing, and to file no
such report, statement or document to which you shall have objected in writing; and to
promptly notify you of such filing;
(g) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Securities, which event could require the making of any change in the Prospectus
then being used so that the Prospectus would not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 4(e) hereof, to prepare and
furnish, at the Companys expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such change or to effect
such compliance;
(h) to make generally available to its security holders, and to deliver to you,
an earnings statement of the Company (which will satisfy the provisions of Section
11(a) of the Act) covering a period of twelve months beginning after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month period;
(i) to furnish to you copies of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the foregoing (other than
exhibits) for distribution of a copy to each of the other Underwriters, in each case only to
the extent such documents are not publicly available on the Commissions
- 22 -
EDGAR database;
(j) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by the
Companys independent registered public accountants, as stated in their letter to be
furnished pursuant to Section 6(c) hereof;
(k) to apply the net proceeds from the sale of the Securities in the manner set forth
under the caption Use of proceeds in the Prospectus Supplement;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Securities including any
stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or
delivery of the Securities, and all other costs related to the preparation, issuance,
authentication and delivery of the Securities, (iii) the producing, word processing and/or
printing of this Agreement, and any closing documents (including compilations thereof), and
the reproduction and/or printing and furnishing of copies of each thereof to the
Underwriters, (iv) the qualification of the Securities for offering and sale under state or
foreign laws and the determination of their eligibility for investment under state or
foreign law (including the legal fees and filing fees and other disbursements of counsel for
the Underwriters not to exceed $5000) and the printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing
of the Securities on any securities exchange or qualification of the Securities for
quotation on the NYSE and any registration thereof under the Exchange Act, (vi) any filing
for review of the public offering of the Securities by the Financial Industry Regulatory
Authority (FINRA), including the legal fees and filing fees and other disbursements of
counsel to the Underwriters (not to exceed $10,000) relating to FINRA matters, (vii) the
fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs
and expenses of the Company (but not the Underwriters) relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the Securities to
prospective investors and the Underwriters sales forces, including, without limitation,
expenses associated with the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show presentations, travel, lodging
and other expenses incurred by the officers of the Company and any such consultants, and the cost
of any aircraft chartered in connection with the road show, (ix) the costs and expenses of
qualifying the Securities for inclusion in the book-entry settlement system of the DTC; (x)
the fees, disbursements and expenses of the Companys counsel and the Companys accountants
in connection with the issuance and sale of the Securities, and (xi) the performance of the
Companys other obligations hereunder;
- 23 -
(m) in connection with the offer and sale of the Securities, to comply with Rule 433(d)
under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the
Act;
(n) beginning on the date hereof and ending on, and including, the date that is 90 days
after the date of the Prospectus Supplement (the Lock-Up Period), without the
prior written consent of the Representative, not to (i) issue, sell, offer to sell, contract
or agree to sell, hypothecate, pledge (other than with respect to Common Stock pledged to a
margin account or otherwise), grant any option to purchase or otherwise dispose of or agree
to dispose of, directly or indirectly, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act with respect to, any Common Stock or any other securities
of the Company or the Operating Partnership that are substantially similar to Common Stock,
or any securities convertible into or exchangeable or exercisable for, or any warrants or
other rights to purchase, the foregoing, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of
Common Stock or any other securities of the Company or the Operating Partnership that are
substantially similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing, whether any
such transaction is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise or (iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii), except, in each case, for (A) the registration of the offer
and sale of the Securities and the sale of the Securities to the Underwriters as
contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options,
other equity-based compensatory awards, or warrants or the conversion or redemption of any
security disclosed as outstanding in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus, (C) the issuance of employee stock
options, restricted stock or other equity-based awards pursuant to stock option and other
equity-based compensatory plans described in the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus, including the filing of a
registration statement on Form S-8 with respect thereto, or (D) the filing of a registration
statement under the Act as described in the preliminary offering memorandum dated March 14,
2008, as amended or supplemented, in connection with the Operating Partnerships concurrent
offering of its exchangeable senior notes to qualified institutional buyers pursuant to Rule
144A under the Act; provided, however, that the restrictions herein shall not apply
to (1) the establishment of a trading plan that complies with Rule 10b5-1 under the Exchange
Act, provided, however, that the restrictions herein shall apply in full force to sales made
pursuant to the trading plan during the Lock-Up Period, or (B) from and after 60 days
from the date hereof, the restrictions set forth in clauses (i) through (iii) above shall
not apply to transactions effected for the purpose of funding, in whole or in part, an
acquisition by the Company or any of its subsidiaries of additional healthcare properties;
provided, further, that if (a) during the period that begins on the date that is
fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up
Period and
- 24 -
ends on the last day of the Lock-Up Period, the Company issues an earnings
release or material news or a material event relating to the Company occurs, or (b) prior to
the expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the sixteen (16) day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed by this Section 4(n) shall continue to apply until the
expiration of the date that is fifteen (15) calendar days plus three (3) business days after
the date on which the issuance of the earnings release or the material news or material
event occurs;
(o) prior to the time of purchase or any additional time of purchase, as the case may
be, to issue no press release or other communication directly or indirectly and hold no
press conferences with respect to the Company or any Subsidiary, the financial condition,
results of operations, business, properties, assets, or liabilities of the Company or any
Subsidiary, or the offering of the Securities, without your prior consent, which consent
will not be unreasonably withheld;
(p) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Securities by means of any prospectus (within the meaning of
the Act), or use any prospectus (within the meaning of the Act) in connection with the
offer or sale of the Securities, in each case other than the Prospectus;
(q) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities;
(r) to use its commercially reasonable best efforts to cause the Securities to be
listed on the NYSE and to maintain such listing;
(t) the Company will use its reasonable best efforts to continue to meet the
requirements to qualify for taxation as a real investment trust under the Code through its
taxable year ended December 31, 2008.
5. Reimbursement of Underwriters Expenses. If the Securities are not delivered for
any reason other than the termination of this Agreement pursuant to Section 7(2)(A), Section
7(2)(C), Section 7(2)(D) or Section 7(2)(E) or the fifth paragraph of Section 8 hereof or the
default by one or more of the Underwriters in its or their respective obligations hereunder, the
Company shall, in addition to paying the amounts described in Section 4(l) hereof, reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of their counsel.
6. Conditions of Underwriters Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company and the Operating Partnership on the date hereof, at the time of purchase and,
if applicable, at the additional time of purchase, the performance by the Company and the Operating
Partnership of their obligations hereunder and to the following additional conditions
- 25 -
precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Goodwin Procter LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each of the other Underwriters, and
in form and substance satisfactory to the Representative, substantially in the form set
forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz,
P.C., tax counsel of the Company, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with executed copies for
each of the other Underwriters, and in form and substance satisfactory to the
Representative, substantially in the form set forth in Exhibit C hereto.
(c) You shall have received from Moss Adams LLP letters dated, respectively, the date
of this Agreement, the date of the Prospectus Supplement, the time of purchase and, if
applicable, the additional time of purchase, and addressed to the Underwriters in the forms
satisfactory to the Representative, which letters shall cover, without limitation, the
various financial disclosures contained in the Companys Annual Report on Form 10-K, the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
(d) You shall have received from KPMG LLP letters dated, respectively, the date of this
Agreement, the date of the Prospectus Supplement, the time of purchase and, if applicable,
the additional time of purchase, and addressed to the Underwriters in the forms satisfactory
to the Representative, which letters shall cover, without limitation, the various financial
disclosures contained in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any.
(e) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, addressed to the Underwriters dated the time of purchase
or the additional time of purchase, as the case may be, in form and substance reasonably
satisfactory to the Representative.
(f) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(g) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Securities, under the Act pursuant to Rule 462(b) shall have been
filed and shall have become effective under the Act. The Prospectus Supplement shall have
been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M.,
New York City time, on the second full business day after the date of this Agreement (or
such earlier time as may be required under the Act).
- 26 -
(h) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) none of the
Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto,
shall include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(i) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, on behalf of the Company for itself and as sole member of the general
partner of the Operating Partnership, dated the time of purchase or the additional time of
purchase, as the case may be, in the form attached as Exhibit D hereto.
(j) The Company will, on the date of this Agreement, the date of the Prospectus
Supplement, at the time of purchase and, if applicable, at the additional time of purchase,
deliver to you a certificate of its Chief Financial Officer, on behalf of the Company for
itself and as sole member of the general partner of the Operating Partnership, dated the
date of this Agreement, the date of the Prospectus Supplement, the time of purchase or the
additional time of purchase, as the case may be, substantially in the form attached as
Exhibit E hereto.
(k) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(t) hereof, and each such Lock-Up Agreement shall be
in full force and effect at the time of purchase and the additional time of purchase, as the
case may be.
(l) The Company and the Operating Partnership shall have furnished to you and such
other documents and certificates as to the accuracy and completeness of any statement in the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as of the time of purchase and, if applicable, the
additional time of purchase, as you may reasonably request.
(m) The Securities shall have been approved for listing on the NYSE, subject only to
notice of issuance at or prior to the time of purchase or the additional time of purchase,
as the case may be.
- 27 -
(n) The FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representative, if (1) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there
has been any change or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries taken
as a whole, the effect of which change or development is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the manner contemplated
in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, or (2) since the time of execution of this Agreement, there shall
have occurred: (A) a suspension or material limitation in trading in securities generally on the
NYSE, the American Stock Exchange or the NASDAQ; (B) a suspension or material limitation in trading
in the Companys securities on the NYSE; (C) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a declaration by the
United States of a national emergency or war; or (E) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (D) or (E), in the sole judgment of the Representative, makes it
impractical or inadvisable to proceed with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, or (3) since the
time of execution of this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended or potential downgrading or (B) any
watch, review or possible change that does not indicate an affirmation or improvement in the rating
accorded any securities of or guaranteed by the Company or any Subsidiary by any nationally
recognized statistical rating organization, as that term is defined in Rule 436(g)(2) under the
Act.
If the Representative elects to terminate this Agreement as provided in this Section 7, the
Company and each other Underwriter shall be notified promptly in writing. Such
termination shall have the effect of terminating this Agreement in its entirety, except for the
applicable provisions referenced in the following paragraph.
If the sale to the Underwriters of the Securities, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company or Operating Partnership shall
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be unable to comply with any of
the terms of this Agreement, the Company and the Operating Partnership shall not be under any
obligation or liability under this Agreement (except to the extent provided in Sections 4(l), 5 and 9
hereof), and the Underwriters shall be under no obligation or liability to the Company or the
Operating Partnership under this Agreement (except to the extent provided in Section 9 hereof) or
to one another hereunder.
8. Increase in Underwriters Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of
Firm Shares agreed to be purchased by all such defaulting Underwriters, as hereinafter provided.
Such Securities shall be taken up and paid for by such non-defaulting Underwriters, acting
severally and not jointly, in such amount or amounts as you may designate with the consent of each
Underwriter so designated or, in the event no such designation is made, such Securities shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion to the aggregate
number of Firm Shares set forth opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if neither the non-defaulting Underwriters nor the
Company shall make arrangements within the five business day period stated above for the purchase
of all the Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder at such time, this Agreement, or in the case of a default with respect to any Additional
Shares, the obligations of the Underwriters to purchase, and of the Company to sell, the Additional
Shares that otherwise were to be purchased by the Underwriters at such additional
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time of purchase,
shall terminate without further act or deed and without any liability on the part of the Company to
any Underwriter and without any liability on the part of any non-defaulting Underwriter to the
Company; provided, however, that for avoidance of doubt, in the case of such a termination on
account of a default with respect to any Additional Shares, this Agreement shall not terminate as
to the Firm Shares or any Additional Shares purchased by the Underwriters from the Company pursuant
hereto prior to such termination. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
9. Indemnity and Contribution.
(a) The Company and the Operating Partnership, jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter and its respective partners, directors
and officers, and any person who controls any such Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not contained in such
information and which material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the term Prospectus
for the purpose of this Section 9 being deemed to include any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and any amendments or
supplements to the foregoing), in any Permitted Free Writing Prospectus, in any issuer
information (as defined in Rule 433 under the Act) of the Company or the Operating
Partnership or in any Prospectus together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, or arises out of or is based upon any omission
or alleged
omission to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, except, with
respect to such Prospectus or Permitted Free Writing Prospectus, insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
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Underwriter through
you to the Company expressly for use in, such Prospectus or Permitted Free Writing
Prospectus or arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information, in the
light of the circumstances under which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, the Operating Partnership and their directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, the Operating Partnership or any
such person may incur under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, the Registration
Statement (or in the Registration Statement as amended by any post-effective amendment
thereof by the Company), or arises out of or is based upon any omission or alleged omission
to state a material fact in such Registration Statement in connection with such information,
which material fact was not contained in such information and which material fact was
required to be stated in such Registration Statement or was necessary to make such
information not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the Company
expressly for use in, a Prospectus or a Permitted Free Writing Prospectus, or arises out of
or is based upon any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the circumstances under
which they were made, not misleading.
(c) If any action, suit or proceeding (each, a Proceeding) is brought against
a person (an indemnified party) in respect of which indemnity may be sought
against the Company, the Operating Partnership or an Underwriter (as applicable, the
indemnifying party) pursuant to subsection (a) or (b), respectively, of this Section
9, such indemnified party shall promptly notify such indemnifying party in writing of the
institution of such Proceeding and such indemnifying party shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify such indemnifying party shall not relieve such indemnifying
party from any liability which such indemnifying party may have to any indemnified party or
otherwise. The indemnified party or parties shall have the right to employ its or their
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own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses available to it
or them which are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by such indemnifying party and paid as
incurred (it being understood, however, that such indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The indemnifying party shall not
be liable for any settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify and hold
harmless the indemnified party or parties from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second sentence of this Section 9(c), then the
indemnifying party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 days prior notice of its intention to settle.
No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnership on the one hand and
the Underwriters on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company or the Operating Partnership on the one
hand and of the
- 32 -
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, damages, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by the Company and
the Operating Partnership on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Securities. The relative fault of the
Company or the Operating Partnership on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(e) The Company, the Operating Partnership and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable considerations
referred to in subsection (d) above. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which such Underwriter
has otherwise been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Underwriters
obligations to contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company and the Operating Partnership
contained in this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors or officers
or any person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or by or on behalf of the Company, its directors or officers or any person
who controls the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the issuance and
delivery of the Securities. The Company and each Underwriter agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of
- 33 -
the Company,
against any of the Companys officers or directors in connection with the issuance and sale
of the Securities, or in connection with the Registration Statement, any Basic Prospectus,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriters. The statements set forth in the second
last paragraph on the cover page of the Prospectus and the statements set forth under the caption
Over-Allotment Option in the Underwriting section of the Prospectus, only insofar as such
statements relate to the amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute the only
information furnished by or on behalf of the Underwriters, as such information is referred to in
Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to the Representative, 299 Park Avenue, New
York, NY 10171-0026, Attention: Syndicate Department and, if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the Company at 1000 Urban Center
Drive, Suite 501, Birmingham, Alabama 35242, Attention: Charles Lambert.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(Claim), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
and the Operating partnership hereby consent to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this Agreement is brought by any
third party against any Underwriter or any indemnified party. The Underwriters, the Company and
the Operating Partnership (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) waive all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. The Company and the Operating Partnership each agree that a final judgment in
any such action, proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company or the
Operating Partnership, as applicable, and may be enforced in any other courts to the
jurisdiction of which the Company or the Operating Partnership, as applicable, is or may be
subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters, the Company and the Operating Partnership and to the extent
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provided in Section 9 hereof the controlling persons, partners, directors and officers
referred to in such Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire
or have any right under or by virtue of this Agreement.
15. No Fiduciary Relationship. The Company and the Operating Partnership hereby
acknowledge that the Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Companys securities. The Company and the Operating Partnership further
acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely
by this Agreement entered into on an arms length basis, and in no event do the parties intend that
the Underwriters act or be responsible as a fiduciary to the Company or the Operating Partnership,
their management, stockholders or creditors or any other person in connection with any activity
that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of
the Companys securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company or the Operating
Partnership, either in connection with the transactions contemplated by this Agreement or any
matters leading up to such transactions, and the Company and the Operating Partnership hereby
confirm their understanding and agreement to that effect. The Company, the Operating Partnership
and the Underwriters agree that they are each responsible for making their own independent
judgments with respect to any such transactions and that any opinions or views expressed by the
Underwriters to the Company regarding such transactions, including, but not limited to, any
opinions or views with respect to the price or market for the Companys securities, do not
constitute advice or recommendations to the Company. The Company and the Operating Partnership
hereby waive and release, to the fullest extent permitted by law, any claims that the Company or
the Operating Partnership may have against the Underwriters with respect to any breach or alleged
breach of any fiduciary or similar duty to the Company or the Operating Partnership in connection
with the transactions contemplated by this Agreement or any matters leading up to such
transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters,
the Company and the Operating Partnership and their successors and assigns and any successor or
assign of any substantial portion of the Companys, the Operating Partnerships and any of the
Underwriters respective businesses and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
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[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
- 36 -
If the foregoing correctly sets forth the understanding among the Company, the Operating
Partnership and the several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding agreement among
the Company, the Operating Partnership and the Underwriters, severally.
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Very truly yours, |
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MEDICAL PROPERTIES TRUST, INC. |
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By: |
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/s/ Edward K. Aldag, Jr. |
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Name: Edward K. Aldag, Jr. |
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Title: Chairman, President & CEO |
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mpt operating partnership, L.P. |
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By: Medical properties trust, llc, |
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its general partner |
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by: medical properties trust, inc. |
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its sole member |
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By:
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/s/ Edward K. Aldag, Jr.
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Name:
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Edward K. Aldag, Jr. |
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Title:
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Chairman, President & CEO |
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Accepted and agreed to as of the date
first above written, on behalf of
itself and the other several
Underwriters named in Schedule A
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UBS SECURITIES LLC |
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By:
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/s/ Jon Santemma
Name: Jon Santemma
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Title: Managing Director |
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By:
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/s/ Kristin Kusmierz
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Name: Kristin Kusmierz |
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Title: Director |
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SCHEDULE A
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Number of |
Underwriter |
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Firm Shares |
UBS SECURITIES LLC |
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4,785,000 |
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KEYBANC CAPITAL MARKETS INC. |
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2,832,500 |
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RBC CAPITAL MARKETS CORPORATION |
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2,832,500 |
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J.P. MORGAN SECURITIES INC. |
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275,000 |
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STIFEL, NICOLAUS & COMPANY, INCORPORATED |
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165,000 |
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FTN MIDWEST SECURITIES CORP. |
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110,000 |
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Total |
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11,000,000 |
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