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): April 10, 2014
MEDICAL PROPERTIES TRUST, INC.
MPT OPERATING PARTNERSHIP, L.P.
(Exact Name of Registrant as Specified in Charter)
Commission File Number 001-32559
333-177186
| Maryland Delaware |
20-0191742 20-0242069 | |
| (State or other jurisdiction of incorporation or organization ) |
(I. R. S. Employer Identification No.) |
| 1000 Urban Center Drive, Suite 501 Birmingham, AL |
35242 | |
| (Address of principal executive offices) | (Zip Code) |
(205) 969-3755
(Registrant’s telephone number, including area code)
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:
| ¨ | Written communications pursuant to Rule425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 8.01. | Other Events. |
On April 10, 2014, the operating partnership of Medical Properties Trust, Inc., a Maryland corporation (the “Company”), MPT Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), MPT Finance Corporation, a Delaware corporation and wholly owned subsidiary of the Operating Partnership (“MPT Finance,” and together with the Operating Partnership, the “Issuers”), and the Company and certain of its subsidiaries (collectively, with the Company, the “Guarantors”) entered into an underwriting agreement (the “Underwriting Agreement”) with Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of the several underwriters listed in Schedule 1 thereto (collectively, the “Underwriters”), pursuant to which the Issuers agreed to issue and sell to the Underwriters $300,000,000 aggregate principal amount of the Issuers’ 5.50% Senior Notes due 2024 (the “Notes”). The offering of the Notes is expected to close on April 17, 2014, subject to customary closing conditions.
The Notes are fully and unconditionally guaranteed, jointly and severally, on an unsecured basis, by the Guarantors.
The offering and sale of the Notes was made pursuant to a free writing prospectus, preliminary prospectus supplement and final prospectus supplement pursuant to the Issuers’ and Guarantors’ effective registration statement on Form S-3 (File No. 333-190543), each of which has been filed with the Securities and Exchange Commission.
The Underwriting Agreement contains customary representations, warranties and covenants by the Issuers and the Guarantors. It also provides for customary indemnification by each of the Issuers and the Guarantors for losses or damages arising out of or in connection with the sale of the Notes.
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.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits |
| Exhibit |
Description | |
| 1.1 | Underwriting Agreement, dated April 10, 2014, among the Issuers, the Guarantors and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of the several underwriters listed in Schedule 1 thereto | |
| 5.1 | Opinion of Goodwin Procter LLP regarding legality of securities offered | |
| 5.2 | Opinion of Arendt & Medernach regarding legality of guarantees offered | |
| 23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Arendt & Medernach (included in Exhibit 5.2) | |
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.
| MEDICAL PROPERTIES TRUST, INC. | ||
| (Registrant) | ||
| By: | /s/ R. Steven Hamner | |
| R. Steven Hamner | ||
| Executive Vice President and Chief Financial Officer | ||
| MPT OPERATING PARTNERSHIP, L.P. | ||
| (Registrant) | ||
| By: | /s/ R. Steven Hamner | |
| R. Steven Hamner | ||
| Executive Vice President and Chief Financial Officer of the sole member of the general partner of MPT Operating Partnership, L.P. | ||
Date: April 16, 2014
INDEX TO EXHIBITS
| Exhibit |
Description | |
| 1.1 | Underwriting Agreement, dated April 10, 2014, among the Issuers, the Guarantors and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of the several underwriters listed in Schedule 1 thereto | |
| 5.1 | Opinion of Goodwin Procter LLP regarding legality of securities offered | |
| 5.2 | Opinion of Arendt & Medernach regarding legality of guarantees offered | |
| 23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Arendt & Medernach (included in Exhibit 5.2) | |
EXHIBIT 1.1
EXECUTION VERSION
$300,000,000
MPT OPERATING PARTNERSHIP, L.P.
MPT FINANCE CORPORATION
5.50% Senior Notes due 2024
Underwriting Agreement
April 10, 2014
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
As Representative of the
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
MPT Operating Partnership, L.P., a Delaware limited partnership (the “Company”), and MPT Finance Corporation, a Delaware corporation (“Finco” and, together with the Company, the “Issuers”), propose to issue and sell to the several underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representative (the “Representative”), $300 million in aggregate principal amount of its 5.50% Senior Notes due 2024 (the “Securities”). The Securities will be issued pursuant to an Indenture dated as of the date hereof (the “Indenture”), among the Issuers, Medical Properties Trust, Inc., a Maryland corporation (“MPT”), and the other guarantors listed on the signature pages hereto (the “Subsidiary Guarantors” and, together with MPT, the “Guarantors”) and Wilmington Trust, National Association, as trustee (the “Trustee”), and will be guaranteed on an unsecured senior basis, jointly and severally, by each of the Guarantors (the “Guarantees”).
The Issuers hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
Section 1. Registration Statement. The Issuers and MPT have prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-190543), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed
with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Issuers and MPT have filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Issuers and MPT had prepared the following information (collectively, the “Pricing Disclosure Package”): a Preliminary Prospectus dated April 10, 2014 relating to the Securities and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time” means 4:09 p.m., New York City time, on April 10, 2014 or such other time as agreed by the Company and the Representative.
Section 2. Purchase of the Securities by the Underwriters.
(a) The Issuers agree to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuers the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 98.25% of the principal amount thereof plus accrued interest from April 10, 2014 to the Closing Date (as defined below) if the Closing Date occurs after that date. The underwriting discount shall be 1.75% of the principal amount of Securities.
(b) The Issuers understand that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representative is advisable, and initially to offer the Securities on the terms set forth in the Prospectus. The Issuers and each of the Guarantors acknowledge and agree that each Underwriter may offer and sell Securities to or through any affiliate of such Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
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(c) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuers to the Representative in the case of the Securities, will be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP at 10:00 a.m., New York City time, on April 17, 2014 unless another time or place shall be agreed to by the Representative and the Issuers in writing. The time and date of such payment for the Securities is referred to herein as the “Closing Date”.
(d) Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the nominee of The Depository Trust Company for the account of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Issuers. The Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(e) The Issuers and each of the Guarantors acknowledge and agree that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and each of the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Underwriter is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and each of the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Underwriters of the Issuers, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Section 3. Representations and Warranties of the Issuers and the Guarantors. The Issuers and the Guarantors jointly and severally represent and warrant to each of the Underwriters that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any 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 that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package, as of the Applicable Time did not, and as of the Closing Date will not, contain any untrue statement of a material fact
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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 that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof. No statement of material fact included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included in the Pricing Disclosure Package that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Neither the Issuers nor MPT (including their respective agents and representatives, other than the Underwriters in their capacity as such) have prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, MPT or their respective agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date will not, contain any 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 that the Issuers, MPT and each of the Subsidiary Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers, MPT and each of the Subsidiary Guarantors in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuers or related to the offering of the Securities has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement and any such amendment complied and will
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comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any 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 that the Issuers, MPT and each of the Subsidiary Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) MPT Financial Statements. The consolidated historical financial statements and related notes of MPT thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, present fairly the consolidated financial position of MPT and its subsidiaries as of the dates indicated and the consolidated results of their operations and changes in their cash flows and stockholders’ equity of MPT for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby; the other financial and statistical data with respect to MPT and its subsidiaries included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, other than information of the Company’s tenants, has been derived from the accounting records of MPT and its subsidiaries and presents fairly the information shown thereby; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus that are not included or incorporated by reference as required; MPT and its 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 Preliminary Prospectus and the Prospectus; and all disclosures included or
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incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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 Securities Act, to the extent applicable; the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(g) No Material Adverse Change. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, in each case excluding any amendments or supplements to the foregoing made after the execution of this Agreement, since the most recent date of MPT’s financial statements included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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, Finco, MPT and their respective subsidiaries taken as a whole, (ii) any transaction which is material to the Company, Finco, MPT and their respective subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company, Finco, MPT or any of their respective subsidiaries, which is material to the Company, Finco, MPT and their respective subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding indebtedness of the Company, Finco, MPT or any of their respective subsidiaries or (v) except for regular quarterly dividends, any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, Finco, MPT or any of their respective subsidiary.
(h) Organization and Good Standing. The Company, Finco, MPT and each of their respective subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or lease and operate their respective properties and to conduct the businesses in which they are engaged as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to be so qualified, in good standing, or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial condition, results of operations or prospects of the Company, Finco, MPT and their respective subsidiaries taken as a whole or on the performance by the Company, Finco, MPT and the Subsidiary Guarantors of their obligations under the Securities and the Guarantees (a “Material Adverse Effect”). The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Schedule 2(a) to this Agreement. MPT does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Schedule 2(b) to this Agreement; MPT owns, directly or indirectly, all of the issued and outstanding capital stock or other ownership interest of each of the subsidiaries listed in Schedule 2(b) to this Agreement, other than the Company, of which MPT owns, directly or indirectly, a majority of the limited partnership units or limited liability company membership interests, as the case may be; other than the capital stock or other ownership interest of the
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subsidiaries listed in Schedule 2(b) to this Agreement, MPT 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.
(i) Capitalization. All of the outstanding shares of capital stock or other ownership interests of each subsidiary of the Company and MPT have been duly authorized and validly issued, are fully paid and non-assessable and except as otherwise described in paragraph (h) above, are owned directly or indirectly by the Company or MPT, as applicable, free and clear of any security interest, other encumbrance or adverse claim, except where such security interests, other encumbrances or adverse claims would not materially affect or interfere in any material respect with the Company’s or MPT’s, as applicable, ability to exercise control over each of its subsidiaries.
(j) Due Authorization. Each of the Issuers, MPT and each of the Subsidiary Guarantors has full right, power and authority to execute and deliver this Agreement, the Securities, the Guarantees and the Indenture (including each Guarantee set forth therein) (collectively, the “Transaction Documents”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(k) The Indenture. The Indenture has been duly authorized by each of the Issuers and each of the Guarantors and upon effectiveness of the Registration Statement was or will have been duly qualified under the Trust Indenture Act and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of each of the Issuers and each of the Guarantors enforceable against each of the Issuers and each of the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”).
(l) The Securities and the Guarantees. The Securities have been duly authorized by each of the Issuers and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the each of the Issuers enforceable against each of the Issuers in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Guarantees have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company, Finco and each of the Guarantors.
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(n) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(o) No Violation or Default. None of the Issuers, MPT nor any of their respective 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 holder’s 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, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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, or (E) any decree, judgment or order applicable to the Issuers, MPT or any of their respective 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.
(p) No Conflicts. The execution, delivery and performance of this Agreement, the issuance and sale of the Securities (including the Guarantees), the consummation of the transactions contemplated by this Agreement 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 holder’s 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 Issuers, MPT or any of their respective subsidiaries pursuant to (A) the charter or bylaws, or other organizational document, of the Issuers, MPT or any of their respective 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 Issuers, MPT or any of their respective 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, or (E) any decree, judgment or order applicable to the Issuers, MPT or any of their respective 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.
(q) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator 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, or approval of stockholders of MPT, is required in connection with the issuance and sale of the Securities (including the Guarantees), compliance by the Issuers and each of the Guarantors with the terms
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thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders and registrations or qualifications (i) as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or under applicable state securities laws or blue sky laws of the various jurisdictions in which the Securities are being offered by the Underwriters, as may be required for the registration of the Securities (including the Guarantees) under the Securities Act, which has been effected and (ii) that have been obtained or will be obtained or completed by the time of purchase of the Securities on the Closing Date.
(r) Legal Proceedings. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Issuers’ or any Guarantors’ knowledge, threatened or contemplated to which the Issuers, MPT or any of their respective 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, except any such action, suit, claim, investigation or proceeding which, if resolved adversely to the Issuers, MPT or any of their respective subsidiaries, would not, individually or in the aggregate, have a Material Adverse Effect.
(s) Independent Accountants. PricewaterhouseCoopers LLP with respect to MPT and its subsidiaries, which has expressed its opinion on the audited financial statements and related schedules included in, or incorporated by reference into, the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered public accounting firm within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(t) Title to Real and Personal Property.
(i) The Company, MPT and their respective 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 Pricing Disclosure Package and the Prospectus or listed as an exception to any owner’s 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, MPT and their respective subsidiaries; any real property, improvements, equipment and personal property held under lease by the Company, MPT or any of their respective subsidiaries are held under valid, existing and enforceable leases, with such exceptions as are disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus 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, MPT or such subsidiary; except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the
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Prospectus, the Company, MPT or a subsidiary has obtained an owner’s 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, MPT or any of their respective subsidiaries, that insures the Company’s or the subsidiary’s fee or leasehold interest, as the case may be, in such real property, or a lender’s 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.
(ii) To the knowledge of the Issuers and the Guarantors, each of the real properties owned or leased by the Company, MPT or any of their respective subsidiaries, whether owned in fee simple or through a joint venture or other partnership (collectively, the “Properties”), 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, in each instance, the Company, MPT or any of their respective subsidiaries, 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; to the knowledge of the Issuers and the Guarantors 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 Issuers and the Guarantors, 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 MPT, 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 or as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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.
(iii) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) the mortgages and deeds of trust encumbering the real property owned by the Company, MPT and their respective subsidiaries are not convertible nor will the Company or MPT hold a participating interest therein and (ii) 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, MPT or their respective subsidiaries.
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(u) Title to Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect, (A) each of the Company, MPT and their respective subsidiaries own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, service names, copyrights, trade secrets and other proprietary information described in the Registration Statement, the Pricing Disclosure Package and the Prospectus 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) neither the Issuers nor any Guarantor is aware of any claim to the contrary or any challenge by any other person to the rights of the Company, MPT or any of their respective subsidiaries with respect to the Intellectual Property.
(v) Intellectual Property Infringement. To the knowledge of the Company, MPT or any of their respective subsidiaries and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (A) neither the Company, MPT nor any of their respective subsidiaries has infringed or is infringing the intellectual property of a third party and (B) neither the Company, MPT nor any of their respective subsidiaries 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.
(w) No Undisclosed Relationship. No relationship, direct or indirect, exists between or among the Issuers, MPT or any of their respective subsidiaries, on the one hand, and the directors, officers, stockholders or other affiliates of the Company, MPT or any of their respective subsidiaries, on the other, that would be required by the Securities Act to be described pursuant to Section 404 of Regulation S-K in an Annual Report on Form 10-K that is not so described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(x) Investment Company Act. Neither the Issuers, MPT nor any of their respective subsidiaries is, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, none of them will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(y) Taxes. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) each of the Company, MPT and their respective subsidiaries have timely filed all material tax returns required to be filed through the date hereof or have properly requested extensions thereof, and (ii) 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.
(z) Licenses and Permits. Each of the Company, MPT and their respective 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
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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 Pricing Disclosure Package and the Prospectus, 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; to the knowledge of the Issuers and the Guarantors, each tenant or proposed tenant of the Properties has all necessary licenses, permits, authorizations, consents and approvals, possess valid and current certificates, 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 Pricing Disclosure Package and the Prospectus, neither the Company, MPT nor any of their respective subsidiaries 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 Pricing Disclosure Package and the Prospectus, except such accreditations and certifications described in the Registration Statement, the Pricing Disclosure Package and the Prospectus all of which have been obtained, except to the extent that any failure to have any such accreditation or certification, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company, MPT nor any of their respective subsidiaries 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, MPT or any of their respective subsidiaries the effect of which, individually or in the aggregate, would result in a Material Adverse Effect.
(aa) No Labor Disputes. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, no labor problem or dispute with the employees of the Company, MPT or any of their respective subsidiaries exists or, to the knowledge of the Company, MPT or any of their respective subsidiaries, is imminent.
(bb) Compliance with Environmental Laws.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company, MPT and their respective subsidiaries and, to the knowledge of the Issuers and the Guarantors, each tenant of the Properties, are in compliance with, and the Company, MPT and each of their respective subsidiaries and, to the knowledge of the Issuers and the Guarantors, 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, or actions or omissions on the part of the Company, MPT or their respective subsidiaries that would reasonably be expected to give rise to any material costs or
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liabilities to the Company, MPT or any of their respective subsidiaries under, or to interfere with or prevent material compliance by the Company, MPT or any of their respective subsidiaries with, Environmental Laws; except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company, MPT nor any of their respective 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 either of the Issuers’ or the Guarantors’ knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order or (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).
(ii) To the knowledge of either of the Issuers and the Guarantors, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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.
(iii) To the knowledge of either of the Issuers and the Guarantors, 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, MPT or any of their respective subsidiaries, and none of their directors, officers or employees is connected with the Company, MPT or any of their respective subsidiaries as a promoter, selling agent, officer, director or employee.
(cc) Internal Accounting Controls. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, MPT and its subsidiaries maintain an effective system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of consolidated financial statements, taken as a whole, in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
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management’s 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.
(dd) Disclosure Controls and Procedures; Internal Control Over Financial Reporting. MPT 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 MPT , including its consolidated subsidiaries, is made known to MPT’s 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; MPT’s independent auditors and the Audit Committee of the Board of Directors of MPT (the “Audit Committee”) have been advised of: (i) all significant deficiencies, if any, in the design or operation of internal controls which could adversely affect MPT’s 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 MPT’s internal controls; all material weaknesses, if any, in internal controls have been identified to MPT’s independent auditors and the Audit Committee; 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 MPT have made all certifications required by the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (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; MPT, the subsidiaries and MPT’s 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.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(ee) Insurance. The Company, MPT and each of their respective subsidiaries maintain or arrange for insurance covering their respective properties (not including those properties subject to a triple-net lease pursuant to which the tenant is responsible for maintaining or arranging for insurance relating to such property), 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, MPT and their respective subsidiaries and their respective businesses; to the knowledge of the Issuers and the Guarantors, all such insurance is fully in force on the date hereof.
(ff) Material Contracts. Other than (i) with respect to MPT’s Monroe, Florence and Gilbert facilities, and (ii) with respect to all other facilities, in the ordinary course of business,
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neither the Company, MPT nor any of their respective subsidiaries has sent or received any communication regarding termination of, or intent not to renew, any of the material contracts or agreements referred to or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and no such termination or non-renewal has been threatened by the Company, MPT or any of their respective subsidiaries or, to the Issuers’ or the Guarantors’ knowledge, any other party to any such contract or agreement, except in all cases for any communication regarding such termination or non-renewal which would not reasonably be expected to have a Material Adverse Effect and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(gg) No Unlawful Payments. None of MPT, any of its subsidiaries or, to the knowledge of MPT and the Company, any director, officer, employee or agent, affiliate or other person acting on behalf of MPT or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, or which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement, any Preliminary Prospectus or the Prospectus, and MPT and, to the knowledge of MPT, its affiliates have conducted their business in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(hh) Compliance with Money Laundering Laws. The operations of the Company, MPT and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, MPT or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of each of the Issuers or the Guarantors, threatened.
(ii) Compliance with OFAC. None of the Company, MPT or any of their respective subsidiaries or, to the knowledge of each of the Issuers or the Guarantors, any director, officer, agent, employee, affiliate or representative of the Company, MPT or any of their respective subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company, MPT or their respective subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company and MPT will not, directly or indirectly, use the proceeds of the
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offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing any activities of or business with any Person, or in any country or territory, that, at the time of such financing, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(jj) Solvency. On and immediately after the Closing Date, the Company and each of the Guarantors (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and each of the Guarantors is not less than the total amount required to pay the liabilities of the Company and each of the Guarantors on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company and each of the Guarantors are able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and each of the Guarantors are not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company and each of the Guarantors are not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or any of the Guarantors are engaged; and (v) neither the Company nor any of the Guarantors is a defendant in any civil action that could reasonably be expected to result in a judgment that the Company or any of the Guarantors is or would be unable to satisfy.
(kk) No Restrictions on Subsidiaries. No subsidiary of the Company or MPT is currently prohibited, directly or indirectly, from paying any dividends to the Company or MPT, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company or MPT any loans or advances to such subsidiary from the Company, MPT or from transferring any of such subsidiary’s properties or assets to the Company, MPT or any other subsidiary of the Company or MPT, except as described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus Supplement and the Prospectus.
(ll) No Broker’s Fees. Neither the Company, MPT nor any of their respective subsidiaries is a party to any contract or agreement with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the execution and delivery of this Agreement, or the consummation of the transactions contemplated hereby or by the Registration Statement.
(mm) No Registration Rights. No person has the right to require the Issuers or any of their subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
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(nn) No Stabilization. Neither the Issuers, MPT nor any of the Subsidiary Guarantors has taken, directly or indirectly, any action designed, or which has constituted or could reasonably be expected to cause or result in any stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(oo) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Issuers as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(pp) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(qq) Statistical and Market Data. All statistical or market-related data included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Issuers and MPT believe to be reliable and accurate in all material respects, and the Issuers and MPT have obtained the written consent to the use of such data from such sources to the extent required.
(rr) Real Estate Investment Trust. MPT 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, 2013, beginning 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 Pricing Disclosure Package and the Prospectus will enable MPT 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, 2014 and thereafter; all statements in the Registration Statement, the Pricing Disclosure Package and the Prospectus regarding MPT’s qualification and taxation as a real estate investment trust are correct in all material respects; MPT presently intends to continue to qualify as a real estate investment trust under the Code this year and for all subsequent years, and MPT does not know of any existing condition that would cause or is likely to cause MPT to fail to qualify as a real estate investment trust under the Code for the taxable year ending December 31, 2014 or anytime thereafter.
(ss) Prior to REIT Status. MPT 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.
(tt) The Company. The Company 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.
(uu) Sarbanes-Oxley Act. There is and has been no failure on the part of MPT or any of MPT’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act, including Section 402 related to loans and Sections 302 and 906 related to certifications.
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(vv) Status under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Issuers, MPT, or any offering participant made a bona fide offer within the meaning of Rule 164(h)(2) under the Securities Act of the Securities and at the date hereof, each of the Issuers and MPT is not an “ineligible issuer” and MPT is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act.
In addition, any certificate signed by or on behalf of the Company, Finco, MPT or any of the Subsidiary Guarantors and delivered to the Underwriters or to the counsel for the Underwriters in connection with the offering of the Securities shall be deemed to be a representation and warranty by the Company, Finco, MPT or any of the Subsidiary Guarantors to the Underwriters as to matters covered thereby.
Section 4. Further Agreements of the Issuers and the Guarantors. Each of the Issuers and each of the Guarantors jointly and severally covenant and agree with each Underwriter that:
(a) Required Filings. The Issuers and MPT will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Term Sheet in the form of Annex B hereto) to the extent required by Rule 433 under the Securities Act, and will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Issuers and MPT will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representative may reasonably request. The Issuers and MPT will pay the registration fee for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein).
(b) Delivery of Copies. The Issuers and MPT will deliver, without charge, (i) to the Representative, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representative may reasonably request, in case of (i) and (ii)(A) only to the extent such documents are not publicly available on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in
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the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. During the Prospectus Delivery Period, before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Issuers and MPT will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. Prior to the later of (x) the Closing Date or (y) the expiration of the Prospectus Delivery Period, the Issuers will advise the Representative promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Issuers and MPT of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Issuers and MPT of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuers and MPT will use their commercially reasonable efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period, (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit
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to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Issuers and MPT will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representative may designate such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package to comply with law, the Issuers and MPT will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representative may designate such amendments or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Issuers and MPT will qualify the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Representative shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that neither the Issuers, MPT nor any of the Subsidiary Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. MPT will make generally available to its security holders and the Representative as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. During the period from the date hereof through and including the Closing Date, each of the Issuers, MPT and each of the Subsidiary Guarantors will not, without the prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by each of the Issuers, MPT or any of the Subsidiary Guarantors and having a tenor of more than one year; provided that the foregoing shall not apply to the sale of the Securities under this Agreement.
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(i) Use of Proceeds. The Issuers will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(j) DTC. The Issuers will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(k) No Stabilization. Neither of the Issuers, MPT nor any of the Subsidiary Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(l) Record Retention. The Issuers and MPT will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
Section 5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that it has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Issuers and MPT and not incorporated by reference into the Registration Statement and any press release issued by the Issuers and MPT) other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), (iii) any free writing prospectus that is not required to be filed pursuant to Rule 433 under the Securities Act, or (iv) any free writing prospectus prepared by such underwriter and approved by the Issuers and MPT in advance in writing (each such free writing prospectus referred to in clauses (i), (iii) or (iv), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use a term sheet substantially in the form of Annex B hereto without the consent of the Issuers or MPT.
Section 6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by each of the Issuers and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) under the Securities Act or pursuant to Section 8A under the Securities Act shall be pending before or explicitly threatened by the
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Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of each of the Issuers and the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of each of the Issuers, the Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, if there are any debt securities or preferred stock of, or guaranteed by, the Company, Finco or MPT or any of their respective subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officer’s Certificate. The Representative shall have received on and as of the Closing Date a certificate of an executive officer of the Issuers, MPT and of each Subsidiary Guarantor who has specific knowledge of the Issuers’, MPT’s or such Subsidiary Guarantor’s financial matters and is satisfactory to the Representative (i) confirming that such officer has carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Issuers, MPT and each of the Subsidiary Guarantors in this Agreement are true and correct and that the Issuers, MPT and each of the Subsidiary Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (b) and (c) above.
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(f) Comfort Letters. On the date of this Agreement and on the Closing Date, PricewaterhouseCoopers LLP, which has certified the consolidated financial statements of the Company and MPT and their subsidiaries, shall have furnished to the Representative, at the request of the Issuers, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of MPT and its subsidiaries contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Opinion and Negative Assurance Letter of Counsel for the Issuers. Goodwin Procter LLP, counsel for the Issuers, shall have furnished to the Representative, at the request of the Issuers, their written opinion and negative assurance letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, substantially in the form set forth in Annex C-1 hereto.
(h) Opinion of REIT Counsel for the Issuers. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, REIT counsel for the Issuers, shall have furnished to the Representative, at the request of the Issuers, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, substantially in the form set forth in Annex C-2 hereto.
(i) Opinion and Negative Assurance Letter of Counsel for the Underwriters. The Representative shall have received on and as of the Closing Date an opinion and negative assurance letter of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees.
(k) Good Standing. The Representative shall have received on and as of the Closing Date satisfactory evidence of (i) the good standing of the Issuers, MPT and the Subsidiary Guarantors in their respective jurisdictions of organization and (ii) the good standing of the Issuers and MPT as foreign entities in such other jurisdictions as shown opposite their name on Schedule 2 hereto, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
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(l) DTC. The Securities shall be eligible for clearance and settlement through DTC.
(m) Indenture. At the Closing Date, the Issuers, MPT, the Subsidiary Guarantors and the Trustee shall have entered into the Indenture and the Representative shall have received counterparts, conformed as executed, thereof.
(n) Chief Financial Officer Certificate. The Representative shall have received on and as of the Closing Date a certificate of the chief financial officer of MPT, substantially in the form attached as Annex D hereto.
(o) Additional Documents. On or prior to the Closing Date, the Issuers, MPT and each of the Subsidiary Guarantors shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Section 7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company, Finco, MPT and each of the Subsidiary Guarantors jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure Package, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company and Finco in writing by such Underwriter through the Representative expressly for use therein.
(b) Indemnification of the Issuers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, Finco, MPT each of the Subsidiary Guarantors, each of their respective directors and officers who signed the Registration Statement and each person, if any, who controls the Company, Finco, MPT or any of the Subsidiary Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent
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as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company and Finco in writing by such Underwriter through the Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed upon that the only such information consists of the following: first sentence of the third paragraph, the third sentence of the sixth paragraph and the fourth and fifth sentence of the twelfth paragraph, in each case under the heading of “Underwriting.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by Merrill Lynch, Pierce, Fenner & Smith Incorporated and any such separate firm for the Company, Finco, the Guarantors, their respective directors and officers who signed the Registration Statement and any control persons of the Company, Finco, MPT and each of the Subsidiary Guarantors shall be designated in writing by the Company and Finco. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff,
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the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Finco, MPT and each of the Subsidiary Guarantors on the one hand, and the Underwriters on the other, from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company, Finco, MPT and each of the Subsidiary Guarantors on the one hand, and the Underwriters on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Finco, MPT and each of the Subsidiary Guarantors on the one hand, and the Underwriters on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company and Finco from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company, Finco, MPT and each of the Subsidiary Guarantors on the one hand, and the Underwriters on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by either of the Company, Finco or any Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, Finco, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 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
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considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities 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 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
Section 8. Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Termination. This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Company and Finco, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by any of the New York Stock Exchange, the Nasdaq Stock Market, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or guaranteed by the Company, Finco, MPT or any of the Subsidiary Guarantors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representative, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery, of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
Section 10. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Issuers on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Issuers shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Issuers may postpone the Closing Date for up to
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five full business days in order to effect any changes that in the opinion of counsel for the Issuers or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Issuers agree to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuers as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-tenth of the aggregate principal amount of all the Securities, then the Issuers shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuers as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-tenth of the aggregate principal amount of all the Securities, or if the Issuers shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Issuers or the Guarantors, except that the Issuers, MPT and each of the Subsidiary Guarantors will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Issuers, the Guarantors or any non-defaulting Underwriter for damages caused by its default.
Section 11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuers, MPT and each of the Subsidiary Guarantors jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Issuers’ and the Guarantors’ counsel and independent accountants; (v) the fees and expenses incurred in
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connection with the registration or qualification and determination of eligibility for investment of the Securities under the state or foreign securities or blue sky laws of such jurisdictions as the Representative may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters not to exceed $5,000); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA; (ix) all expenses and application fees incurred in connection with the approval of the Securities for book-entry transfer by DTC; and (x) all expenses incurred by the Issuers in connection with any “road show” presentation to potential investors including without limitation, one-half of the direct hourly operating costs of any transportation chartered in connection with the road show, provided that one-half of the direct hourly operating costs of any transportation chartered in connection with the road show and the lodging, airfare and other expenses (including meals) of employees of the Underwriters shall be the responsibility of the Underwriters.
(b) If (i) this Agreement is terminated pursuant to Section 9(ii), (ii) the Issuers for any reason fail to tender the Securities for delivery to the Underwriters, or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Issuers, MPT and each of the Subsidiary Guarantors jointly and severally agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
Section 12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors, officers and directors and any controlling persons referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy, benefit or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor or beneficiary merely by reason of such purchase.
Section 13. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Issuers, MPT, the Subsidiary Guarantors and the Underwriters contained in this Agreement or made by or on behalf of the Issuers, MPT, the Subsidiary Guarantors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Issuers, MPT, the Subsidiary Guarantors or the Underwriters.
Section 14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
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Section 15. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuers and MPT, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
Section 16. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters hereunder may be taken by Merrill Lynch, Pierce, Fenner & Smith Incorporated on behalf of the Underwriters, and any such action taken by Merrill Lynch, Pierce, Fenner & Smith Incorporated shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representative c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York 10036 (fax: (917) 267-7085). Notices to the Issuers, MPT and each of the Subsidiary Guarantors shall be given to them at the offices of MPT at 1000 Urban Center Drive, Suite 501, Birmingham, Alabama 35242, (fax: (205) 969-3756); Attention: Charles Lambert.
(c) Trial by Jury. MPT (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates), the Company, Finco and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
(d) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such state.
(e) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(f) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(g) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing is in accordance with the understanding among the Company, MPT and the Subsidiary Guarantors, please indicate your acceptance of this Agreement by signing in the space provided below.
| Very truly yours, | ||||
| MPT OPERATING PARTNERSHIP, L.P. | ||||
| BY: MEDICAL PROPERTIES TRUST, LLC, | ||||
| ITS GENERAL PARTNER | ||||
| BY: MEDICAL PROPERTIES TRUST, INC., | ||||
| ITS SOLE MEMBER | ||||
| By: | /s/ R. Steven Hamner | |||
| Name: | R. Steven Hamner | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| MPT FINANCE CORPORATION | ||||
| By: | /s/ R. Steven Hamner | |||
| Name: | R. Steven Hamner | |||
| Title: | President, Secretary and General Manager | |||
| MEDICAL PROPERTIES TRUST, INC. | ||||
| By: | /s/ R. Steven Hamner | |||
| Name: | R. Steven Hamner | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| MEDICAL PROPERTIES TRUST, LLC | ||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||
| ITS SOLE MEMBER | ||||
| By: | /s/ R. Steven Hamner | |||
| Name: | R. Steven Hamner | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| MPT OF VICTORVILLE, LLC | ||||
| MPT OF BUCKS COUNTY, LLC | ||||
| MPT OF BLOOMINGTON, LLC | ||||
| MPT OF COVINGTON, LLC | ||||
| MPT OF DENHAM SPRINGS, LLC | ||||
| MPT OF REDDING, LLC | ||||
| MPT OF CHINO, LLC | ||||
31
| MPT OF DALLAS LTACH, LLC |
| MPT OF PORTLAND, LLC |
| MPT OF VICTORIA, LLC |
| MPT OF LULING, LLC |
| MPT OF WEST ANAHEIM, LLC |
| MPT OF LA PALMA, LLC |
| MPT OF PARADISE VALLEY, LLC |
| MPT OF SOUTHERN CALIFORNIA, LLC |
| MPT OF TWELVE OAKS, LLC |
| MPT OF SHASTA, LLC |
| MPT OF BOSSIER CITY, LLC |
| MPT OF WEST VALLEY CITY, LLC |
| MPT OF IDAHO FALLS, LLC |
| MPT OF POPLAR BLUFF, LLC |
| MPT OF BENNETTSVILLE, LLC |
| MPT OF DETROIT, LLC |
| MPT OF BRISTOL, LLC |
| MPT OF NEWINGTON, LLC |
| MPT OF ENFIELD, LLC |
| MPT OF PETERSBURG, LLC |
| MPT OF GARDEN GROVE HOSPITAL, LLC |
| MPT OF GARDEN GROVE MOB, LLC |
| MPT OF SAN DIMAS HOSPITAL, LLC |
| MPT OF SAN DIMAS MOB, LLC |
| MPT OF CHERAW, LLC |
| MPT OF FT. LAUDERDALE, LLC. |
| MPT OF PROVIDENCE, LLC |
| MPT OF SPRINGFIELD, LLC |
| MPT OF WARWICK, LLC |
| MPT OF RICHARDSON, LLC |
| MPT OF ROUND ROCK, LLC |
| MPT OF SHENANDOAH, LLC |
| MPT OF HILLSBORO, LLC |
| MPT OF FLORENCE, LLC |
| MPT OF CLEAR LAKE, LLC |
| MPT OF TOMBALL, LLC |
| MPT OF GILBERT, LLC |
| MPT OF CORINTH, LLC |
| MPT OF BAYONNE, LLC |
| MPT OF ALVARADO, LLC |
| MPT OF DESOTO, LLC |
| MPT OF HAUSMAN, LLC |
| MPT OF HOBOKEN HOSPITAL, LLC |
| MPT OF HOBOKEN REAL ESTATE, LLC |
| MPT OF OVERLOOK PARKWAY, LLC |
| MPT OF NEW BRAUNFELS, LLC |
32
| MPT OF WESTOVER HILLS, LLC |
| MPT OF WICHITA, LLC |
| MPT OF BILLINGS, LLC |
| MPT OF BOISE, LLC |
| MPT OF BROWNSVILLE, LLC |
| MPT OF CASPER, LLC |
| MPT OF COMAL COUNTY, LLC |
| MPT OF GREENWOOD, LLC |
| MPT OF JOHNSTOWN, LLC |
| MPT OF LAREDO, LLC |
| MPT OF LAS CRUCES, LLC |
| MPT OF MESQUITE, LLC |
| MPT OF POST FALLS, LLC |
| MPT OF PRESCOTT VALLEY, LLC |
| MPT OF PROVO, LLC |
| MPT OF NORTH CYPRESS, LLC |
| MPT OF LAFAYETTE, LLC |
| MPT OF INGLEWOOD, LLC |
| MPT OF RENO, LLC |
| MPT OF ROXBOROUGH, LLC |
| MPT OF ALTOONA, LLC |
| MPT OF HAMMOND, LLC |
| MPT OF SPARTANBURG, LLC |
| MPT OF WYANDOTTE COUNTY, LLC |
| MPT OF LEAVENWORTH, LLC |
| MPT OF CORPUS CHRISTI, LLC |
| MPT OF BRODIE FCER, LLC |
| MPT OF LITTLE ELM FCER, LLC |
| MPT OF OGDEN, LLC |
| MPT OF NACOGDOCHES FCER, LLC |
| MPT OF MESH, LLC |
| MPT OF PORT ARTHUR, LLC |
| MPT OF WEST MONROE, LLC |
| MPT OF DALLAS, LLC |
| MPT OF MONTCLAIR, LLC |
| MPT OF ALVIN FCER, LLC |
| MPT OF FIRESTONE FCER, LLC |
| MPT OF HOUSTON-ELDRIDGE FCER, LLC |
| MPT OF CEDAR HILL FCER, LLC |
| MPT OF ALLEN FCER, LLC |
| MPT OF FRISCO FCER, LLC |
| MPT OF BROOMFIELD FCER, LLC |
| MPT OF CHAMPION FOREST FCER, LLC |
| MPT OF NORTHGATE FCER, LLC |
| MPT OF THORNTON FCER, LLC |
| MPT OF FOUNTAIN FCER, LLC |
33
| MPT OF MISSOURI CITY FCER, LLC | ||||||||||||||
| MPT OF PEARLAND FCER, LLC | ||||||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., SOLE MEMBER OF EACH OF THE ABOVE ENTITIES | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, ITS GENERAL PARTNER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., ITS SOLE MEMBER | ||||||||||||||
| By: | /s/ R. Steven Hamner | |||||||||||||
| Name: | R. Steven Hamner | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer | |||||||||||||
| MPT OF BUCKS COUNTY, L.P. | ||||||||||||||
| By: MPT OF BUCKS COUNTY, LLC, | ||||||||||||||
| ITS GENERAL PARTNER | ||||||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||||||
| ITS SOLE MEMBER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||||||
| ITS GENERAL PARTNER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||||||
| ITS SOLE MEMBER | ||||||||||||||
| MPT OF DALLAS LTACH, L.P. | ||||||||||||||
| By: MPT OF DALLAS LTACH, LLC, | ||||||||||||||
| ITS GENERAL PARTNER | ||||||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||||||
| ITS SOLE MEMBER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||||||
| ITS GENERAL PARTNER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||||||
| ITS SOLE MEMBER | ||||||||||||||
34
| MPT OF VICTORIA, L.P. | ||||||||||
| By: MPT OF VICTORIA, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF LULING, L.P. | ||||||||||
| By: MPT OF LULING, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF WEST ANAHEIM, L.P. | ||||||||||
| By: MPT OF WEST ANAHEIM, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF LA PALMA, L.P. | ||||||||||
| By: MPT OF LA PALMA, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
35
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF PARADISE VALLEY, L.P. | ||||||||||
| By: MPT OF PARADISE VALLEY, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF SOUTHERN CALIFORNIA, L.P. | ||||||||||
| By: MPT OF SOUTHERN CALIFORNIA, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF TWELVE OAKS, L.P. | ||||||||||
| By: MPT OF TWELVE OAKS, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
36
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF SHASTA, L.P. | ||||||||||
| By: MPT OF SHASTA, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF GARDEN GROVE HOSPITAL, L.P. | ||||||||||
| By: MPT OF GARDEN GROVE HOSPITAL, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF GARDEN GROVE MOB, L.P. | ||||||||||
| By: MPT OF GARDEN GROVE MOB, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
37
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF SAN DIMAS HOSPITAL, L.P. | ||||||||||
| By: MPT OF SAN DIMAS HOSPITAL, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF SAN DIMAS MOB, L.P. | ||||||||||
| By: MPT OF SAN DIMAS MOB, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF RICHARDSON, L.P. | ||||||||||
| By: MPT OF RICHARDSON, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
38
| MPT OF ROUND ROCK, L.P. | ||||||||||
| By: MPT OF ROUND ROCK, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF SHENANDOAH, L.P. | ||||||||||
| By: MPT OF SHENANDOAH, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF HILLSBORO, L.P. | ||||||||||
| By: MPT OF HILLSBORO, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF CLEAR LAKE, L.P. | ||||||||||
| By: MPT OF CLEAR LAKE, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
39
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF TOMBALL, L.P. | ||||||||||
| By: MPT OF TOMBALL, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF CORINTH, L.P. | ||||||||||
| By: MPT OF CORINTH, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF ALVARADO, L.P. | ||||||||||
| By: MPT OF ALVARADO, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
40
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF DESOTO, L.P. | ||||||||||
| By: MPT OF DESOTO, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF MOUNTAIN VIEW LLC | ||||||||||
| By: MPT OF IDAHO FALLS, LLC, | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| WICHITA HEALTH ASSOCIATES LIMITED PARTNERSHIP | ||||||||||
| By: MPT OF WICHITA, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
41
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF NORTH CYPRESS, L.P. | ||||||||||
| By: MPT OF NORTH CYPRESS, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF INGLEWOOD, L.P. | ||||||||||
| By: MPT OF INGLEWOOD, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| MPT OF ROXBOROUGH, L.P. | ||||||||||
| By: MPT OF ROXBOROUGH, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
| By: MEDICAL PROPERTIES, LLC, | ||||||||||
| ITS GENERAL PARTNER | ||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||
| ITS SOLE MEMBER | ||||||||||
42
| By: | /s/ R. Steven Hamner | |||||||||||||
| Name: | R. Steven Hamner | |||||||||||||
| Title: | Executive Vice President and Chief Financial Officer | |||||||||||||
| MPT OF LOS ANGELES, L.P. | ||||||||||||||
| By: MPT OF LOS ANGELES, L.P., | ||||||||||||||
| ITS GENERAL PARTNER | ||||||||||||||
| By: MPT OPERATING PARTNERSHIP, L.P., | ||||||||||||||
| ITS SOLE MEMBER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, LLC, | ||||||||||||||
| ITS GENERAL PARTNER | ||||||||||||||
| By: MEDICAL PROPERTIES TRUST, INC., | ||||||||||||||
| ITS SOLE MEMBER | ||||||||||||||
| MPT RHM HOLDCO S.à r.l. | ||||||||||||||
| MPT RHM SONNEWENDE S.à r.l. | ||||||||||||||
| MPT RHM KLAUS S.à r.l. | ||||||||||||||
| MPT RHM VESALIUS S.à r.l. | ||||||||||||||
| MPT RHM PARK S.à r.l. | ||||||||||||||
| MPT RHM FONTANA S.à r.l. | ||||||||||||||
| MPT RHM CHRISTIAAN S.à r.l. | ||||||||||||||
| MPT RHM HILLERSBACH S.à r.l. | ||||||||||||||
| By: | /s/ Leanne McWilliams | |||||||||||||
| Name: | Leanne McWilliams | |||||||||||||
| Title: | Class A Manager | |||||||||||||
| By: | /s/ James Kevin Hanna | |||||||||||||
| Name: | Leanne McWilliams | |||||||||||||
| Title: | Class A Manager and Authorized Signatory | |||||||||||||
43
| Accepted: | ||
| MERRILL LYNCH, PIERCE, FENNER & SMITH | ||
| INCORPORATED | ||
| For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. | ||
| By: | /s/ Gray W. Hampton III | |
| Authorized Signatory | ||
44
Schedule 1
| Underwriter |
Principal Amount | |||
| Merrill Lynch, Pierce, Fenner &
Smith |
$ | 67,500,000 | ||
| J.P. Morgan Securities LLC |
$ | 49,500,000 | ||
| Barclays Capital Inc. |
$ | 36,000,000 | ||
| KeyBanc Capital Markets Inc. |
$ | 36,000,000 | ||
| Deutsche Bank Securities Inc. |
$ | 22,500,000 | ||
| RBC Capital Markets, LLC |
$ | 22,500,000 | ||
| SunTrust Robinson Humphrey, Inc. |
$ | 22,500,000 | ||
| BBVA Securities Inc. |
$ | 15,000,000 | ||
| Credit Agricole Securities (USA) Inc. |
$ | 15,000,000 | ||
| Raymond James & Associates, Inc. |
$ | 6,750,000 | ||
| Regions Securities LLC |
$ | 6,750,000 | ||
|
|
|
|||
| Total |
$ | 300,000,000 | ||
|
|
|
|||
45
Schedule 2
| Entity |
Jurisdiction of |
Jurisdiction(s) in Which Qualified | ||
| Company |
||||
| Medical Properties Trust, Inc. |
Maryland | Alabama, Texas | ||
| MPT Operating Partnership, L.P.* |
Delaware | Massachusetts, Alabama, New York, Kansas | ||
46
Schedule 2(a)
Subsidiaries of MPT Operating Partnership, L.P.
MPT of Victorville, LLC
MPT of Bucks County, LLC
MPT of Bucks County, L.P.
MPT of Bloomington, LLC
MPT of Covington, LLC
MPT of Denham Springs, LLC
MPT of Redding, LLC
MPT of Chino, LLC
MPT of Dallas LTACH, LLC
MPT of Dallas LTACH, L.P.
MPT of Portland, LLC
MPT of Victoria, LLC
MPT of Victoria, L.P.
MPT of Luling, LLC
MPT of Luling, 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 Southern California, LLC
MPT of Southern California, L.P.
MPT of Twelve Oaks, LLC
MPT of Twelve Oaks, L.P.
MPT of Shasta, LLC
MPT of Shasta, L.P.
MPT of Bossier City, LLC
MPT of West Valley City, LLC
MPT of Idaho Falls, LLC
MPT of Poplar Bluff, LLC
MPT of Bennettsville, LLC
MPT of Detroit, LLC
MPT of Bristol, LLC
MPT of Newington, LLC
MPT of Enfield, LLC
MPT of Petersburg, LLC
MPT of Wichita, LLC
MPT of North Cypress, LLC
MPT of North Cypress, L.P.
MPT of Garden Grove Hospital, LLC
MPT of Garden Grove Hospital, L.P.
MPT of Garden Grove MOB, LLC
47
MPT of Garden Grove MOB, L.P.
MPT of San Dimas Hospital, LLC
MPT of San Dimas Hospital, L.P.
MPT of San Dimas MOB, LLC
MPT of San Dimas MOB, L.P.
MPT Cheraw, LLC
MPT of Ft. Lauderdale, LLC.
MPT of Providence, LLC
MPT of Springfield, LLC
MPT of Warwick, LLC
Wichita Health Associates, L.P.
MPT of Richardson, LLC
MPT of Richardson, L.P.
MPT of Round Rock, LLC
MPT of Round Rock, L.P.
MPT of Shenandoah, LLC
MPT of Shenandoah, L.P.
MPT of Hillsboro, LLC
MPT of Hillsboro, L.P.
MPT of Florence, LLC
MPT of Clear Lake, LLC
MPT of Clear Lake, L.P.
MPT of Tomball, LLC
MPT of Tomball, L.P.
MPT of Gilbert, LLC
MPT of Corinth, LLC
MPT of Corinth, L.P.
MPT of Bayonne, LLC
MPT of Alvarado, LLC
MPT of Alvarado, L.P.
MPT of Desoto, LLC
MPT of Desoto, L.P.
MPT of Hoboken Real Estate, LLC
MPT of Hoboken Hospital, LLC
MPT Finance Corporation
MPT of Mountain View, LLC
MPT of Hausman, LLC
MPT of Overlook Parkway, LLC
MPT of New Braunfels, LLC
MPT of Westover Hills, LLC
MPT of Billings, LLC
MPT of Boise, LLC
MPT of Brownsville, LLC
MPT of Casper, LLC
MPT of Comal County, LLC
MPT of Greenwood, LLC
48
MPT of Johnstown, LLC
MPT of Laredo, LLC
MPT of Las Cruces, LLC
MPT of Mesquite, LLC
MPT of Post Falls, LLC
MPT of Prescott Valley, LLC
MPT of Provo, LLC
MPT of North Cypress, LLC
MPT of North Cypress, L.P.
MPT of Lafayette, LLC
MPT of Inglewood, LLC
MPT of Inglewood, L.P.
MPT of Reno, LLC
MPT of Roxborough, LLC
MPT of Roxborough, L.P,
MPT of Altoona, LLC
MPT of Hammond, LLC
MPT of Spartanburg, LLC
MPT of Wyandotte County, LLC
MPT of Leavenworth, LLC
MPT of Corpus Christi, LLC
MPT of Ogden, LLC
MPT of Brodie FCER LLC
MPT of Little Elm FCER, LLC
MPT of Ogden, LCC
MPT of Nacogdoches FCER, LLC
MPT of Mesh, LLC
MPT of Port Arthur, LLC
MPT of West Monroe, LLC
MPT of Dallas, LLC
MPT of Montclair, LLC
MPT of Alvin FCER, LLC
MPT of Firestone FCER, LLC
MPT of Houston-Eldridge FCER, LLC
MPT of Cedar Hill FCER, LLC
MPT of Allen FCER, LLC
MPT of Frisco FCER, LLC
MPT of Broomfield FCER, LLC
MPT of Champion Forest FCER, LLC
MPT of Northgate FCER, LLC
MPT of Thornton FCER, LLC
MPT of Fountain FCER, LLC
MPT of Missouri City FCER, LLC
MPT of Pearland FCER, LLC
49
Schedule 2(b)
Subsidiaries of Medical Properties Trust, Inc.
Medical Properties Trust, LLC
MPT Operating Partnership, L.P.
All of the entities identified on Schedule 2(a)
50
EXHIBIT 5.1
[Goodwin Procter LLP Letterhead]
April 10, 2014
Medical Properties Trust, Inc.
MPT Operating Partnership, L.P.
MPT Finance Corporation
1000 Urban Center Drive, Suite 501
Birmingham, AL 35242
Re: Securities Registered under Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of Amendment No. 1 to a Registration Statement on Form S-3 (File No. 333-190543) (as amended or supplemented, the “Registration Statement”) filed on April 10, 2014 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of (i) debt securities (the “Debt Securities”) of MPT Operating Partnership, L.P., a Delaware limited partnership, and MPT Finance Corporation, a Delaware corporation (the “Issuers”) and (ii) the guarantees of the Debt Securities (the “Guarantees”) by Medical Properties Trust, Inc., a Maryland corporation (the “Parent Guarantor”), and certain subsidiaries of the Parent Guarantor named in Schedule 1A and Schedule 1B (the “Subsidiary Guarantors,” and together with the Parent Guarantor, the “Guarantors”). Reference is made to our opinion letter dated April 10, 2014 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on April 11, 2014 by the Issuers and the Guarantors with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Issuers of $300,000,000 aggregate principal amount of Debt Securities in the form of 5.50% Senior Notes due 2024 (the “Notes”) and the guarantees thereof by the Guarantors (the “Note Guarantees”). We understand that the Notes and the Note Guarantees are to be offered and sold in the manner described in the Prospectus Supplement.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Parent Guarantor. Reference is made to the opinion letter, dated the date hereof and addressed to you, from Arendt & Medernach, upon which we are relying as to any matters of Luxembourg law.
Reference is made to the Fifth Supplemental Indenture, which is anticipated to be entered into on or about April 17, 2014 by the Issuers, the Guarantors and Wilmington Trust, National Association, as trustee (the “Trustee”), establishing the terms of the Notes and the Note Guarantees, in a form consistent with that authorized by the Issuers (the “Fifth Supplemental Indenture”). The Fifth Supplemental Indenture will amend and supplement the Indenture, dated as of October 10, 2013 by and among the Issuers, the Guarantors and the Trustee, as amended and supplemented through the date hereof.
The opinions set forth below are limited to the Maryland General Corporation Law (which includes reported judicial decisions interpreting the Maryland General Corporation Law), the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation Law), the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act and the law of New York.
Medical Properties Trust, Inc.
MPT Operating Partnership, L.P.
MPT Finance Corporation
April 10, 2014
Page 2
Based on the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:
1. Upon the due execution and delivery of the Fifth Supplemental Indenture by each of the Issuers, the Guarantors and the Trustee and the execution, authentication and issuance of the Notes against payment therefor in accordance with the terms of the Indenture, the Notes will be valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with their terms; and
2. Upon the due execution and delivery of the Fifth Supplemental Indenture by each of the Issuers, the Guarantors and the Trustee and the execution and issuance of the Note Guarantees in accordance with the terms of the Indenture, the Note Guarantees will be valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms.
The opinions expressed above are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to Medical Properties Trust, Inc.’s Current Report on Form 8-K filed April 16, 2014, which will be incorporated by reference into the Registration Statement and to the references to our firm therein under the caption “Legal Matters” in the Registration Statement and the Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Goodwin Procter LLP
GOODWIN PROCTER LLP
2
Schedule 1A*
Medical Properties Trust, LLC
MPT of Victorville, LLC
MPT of Bucks County, LLC
MPT of Covington, LLC
MPT of Denham Springs, LLC
MPT of Redding, LLC
MPT of Chino, LLC
MPT of Dallas LTACH, LLC
MPT of Portland, LLC
MPT of Victoria, LLC
MPT of Luling, LLC
MPT of West Anaheim, LLC
MPT of La Palma, LLC
MPT of Paradise Valley, LLC
MPT of Southern California, LLC
MPT of Shasta, LLC
MPT of Bennettsville, LLC
MPT of Bossier City, LLC
MPT of Cheraw, LLC
MPT of Idaho Falls, LLC
MPT of Webster, LLC
MPT of Providence, LLC
MPT of Springfield, LLC
MPT of Warwick, LLC
MPT of Bristol, LLC
MPT of Enfield, LLC
MPT of Newington, LLC
MPT of Detroit, LLC
MPT of Petersburg, LLC
MPT of Garden Grove Hospital, LLC
MPT of Garden Grove MOB, LLC
MPT of San Dimas Hospital, LLC
MPT of San Dimas MOB, LLC
MPT of Mountain View, LLC
MPT of Twelve Oaks, LLC
MPT of Bloomington, LLC
MPT of Richardson, LLC
MPT of Round Rock, LLC
MPT of Shenandoah, LLC
MPT of Hillsboro, LLC
MPT of Florence, LLC
MPT of Clear Lake, LLC
MPT of Tomball, LLC
MPT of Gilbert, LLC
MPT of Corinth, LLC
3
MPT of Bayonne, LLC
MPT of Alvarado, LLC
MPT of Ft. Lauderdale, LLC
MPT of Hoboken Hospital, LLC
MPT of Hoboken Real Estate, LLC
MPT of Hausman, LLC
MPT of Overlook Parkway, LLC
MPT of New Braunfels, LLC
MPT of Westover Hills, LLC
MPT of Wichita, LLC
MPT of Poplar Bluff, LLC
MPT of West Valley City, LLC
MPT of DeSoto, LLC
MPT of Boise, LLC
MPT of Comal County, LLC
MPT of Billings, LLC
MPT of Brownsville, LLC
MPT of Casper, LLC
MPT of Greenwood, LLC
MPT of Johnstown, LLC
MPT of Laredo, LLC
MPT of Las Cruses, LLC
MPT of Mesquite, LLC
MPT of Post Falls, LLC
MPT of Prescott Valley, LLC
MPT of Provo, LLC
MPT of North Cypress, LLC
MPT of Lafayette, LLC
MPT of Inglewood, LLC
MPT of Reno, LLC
MPT of Roxborough, LLC
MPT of Altoona, LLC
MPT of Hammond, LLC
MPT of Spartanburg, LLC
MPT of Wyandotte County, LLC
MPT of Leavenworth, LLC
MPT of Corpus Christi, LLC
MPT of Bucks County, L.P.
MPT of Dallas LTACH, L.P.
MPT of Warm Springs, L.P.
MPT of Victoria, L.P.
MPT of Luling, L.P.
MPT of West Anaheim, L.P.
MPT of La Palma, L.P.
MPT of Paradise Valley, L.P.
MPT of Southern California, L.P.
4
MPT of Shasta, L.P.
MPT of Garden Grove Hospital, L.P.
MPT of Garden Grove MOB, L.P.
MPT of San Dimas Hospital, L.P.
MPT of San Dimas MOB, L.P.
MPT of Twelve Oaks, L.P.
MPT of Richardson, L.P.
MPT of Round Rock, L.P.
MPT of Shenandoah, L.P.
MPT of Hillsboro, L.P.
MPT of Clear Lake, L.P.
MPT of Tomball, L.P.
MPT of Corinth, L.P.
MPT of Alvarado, L.P.
Wichita Health Associates Limited Partnership
MPT of DeSoto, L.P.
MPT of North Cypress, L.P.
MPT of Inglewood, L.P.
MPT of Roxborough, L.P.
MPT of Brodie FCER, LLC
MPT of Little Elm FCER, LLC
MPT of Ogden, LLC
MPT of Nacogdoches FCER, LLC
MPT of Mesa, LLC
MPT of Port Arthur, LLC
MPT of West Monroe, LLC
MPT of Dallas, LLC
MPT of Montclair, LLC
MPT of Alvin FCER, LLC
MPT of Firestone FCER, LLC
MPT of Houston- Eldridge FCER, LLC
MPT of Cedar Hill FCER, LLC
MPT of Allen FCER, LLC
MPT of Frisco FCER, LLC
MPT of Broomfield FCER, LLC
MPT of Champion Forest FCER, LLC
MPT of Thornton FCER, LLC
MPT of North Gate FCER, LLC
MPT of Fountain FCER, LLC
MPT of Missouri City FCER, LLC
MPT of Pearland FCER, LLC
MPT of Los Angeles, L.P.
| * | All entities listed on this schedule are organized in Delaware |
5
Schedule 1B**
MPT RHM Holdco S.à r.l.
MPT RHM Sonnenwende S.à r.l.
MPT RHM Klaus S.à r.l.
MPT RHM Vesalius S.à r.l.
MPT RHM Park S.à r.l.
MPT RHM Fontana S.à r.l.
MPT RHM Christiaan S.à r.l.
MPT RHM Hillersbach S.à r.l.
| * | All entities listed on this schedule are organized in Luxembourg |
6
EXHIBIT 5.2
EXECUTION VERSION
To the addressees listed in
Appendix D to this Opinion
Luxembourg, 15 April 2014
LASC/MIJ – 54818.10744656v4
PROJECT RHINE
Dear Madam, dear Sir,
We are lawyers admitted to practice under the laws of Luxembourg. In such capacity, we have acted as Luxembourg legal advisers to the Companies and have been asked by the Companies to provide to the addressees listed in Appendix D to this Opinion our opinion as to certain matters of Luxembourg law as further set out in section 5 of this Opinion in connection with your filing of Amendment No. 1 to a Registration Statement on Form S-3 (File No. 333-190543) with the United States Securities and Exchange Commission under the United States Securities of Act of 1933, as amended, relating to the registration of, inter alia, the subsidiary guarantees by the Companies under the Contractual Documents.
| 1. | In arriving at the opinions expressed below, we have examined and relied on the Documents. |
Capitalized terms used herein are defined in appendix A, B and/or C hereto.
| 2. | This Opinion is limited to Luxembourg Law. Accordingly, we express no opinion with regard to any system of law other than Luxembourg Law, in addition, we express no opinion on the legality and/or validity and/or enforceability and/or the performance of the Contractual Documents or any documents referred to in any of the Contractual Documents (including as to whether such create valid, legal and enforceable security on the Companies’ securities and/or assets held by the Companies), which have not been reviewed for this purpose. |
ASSUMPTIONS
| 3. | For the purpose of this Opinion we have assumed: |
| (i) | that the Contractual Documents will be signed by each of the parties thereto substantially in the form examined by us and as approved by the managers of the Companies in the relevant Resolutions and that any amendments and modifications to the Contractual Documents since our examination have been made in accordance with the Resolutions; |
| (ii) | that, in respect of each of the Contractual Documents and each of the transactions contemplated by, referred to in, provided for or effected by the Contractual Documents, (a) the parties to the Contractual Documents will enter into the same in good faith and for the purpose of carrying out their business, (b) the parties to the Contractual Documents will enter into the same on arms’ length |
| (iii) | commercial terms, (c) the parties to the Contractual Documents will enter into the same without any intention to defraud or deprive of any legal benefit any other persons (such as third parties and in particular creditors) or to circumvent any applicable mandatory laws or regulations of any jurisdiction, (d) the entry into the Contractual Documents and the performance of any rights and obligations thereunder are in the best corporate interest (intérêt social) of the parties thereto and (e) the binding effect of the Contractual Documents on each party will not be affected by any matter or factual circumstance such as fraud, coercion, duress, undue influence or mistake; |
| (iv) | that the managers of each of the Companies have reviewed and are satisfied that the transactions contemplated by, referred to in, provided for or effected by the Contractual Documents are in the best corporate interest of each of the Companies; |
| (v) | that the Resolutions were properly passed, that the meetings of the board of managers of each of the Companies were properly convened for the purpose of adopting the relevant Resolutions, that, in each of the Companies, each manager has properly performed his/her duties and that all provisions relating to the declaration of opposite interests or the power of the interested managers to vote were fully observed; |
| (vi) | that the head office (administration centrale) and the place of effective management (siège de direction effective) of the Companies are located at the place of their respective registered office (siège statutaire) in Luxembourg; |
| (vii) | for the purposes of the Insolvency Regulation, that the centre of main interests (centre des intérêts principaux) of the Companies is located at the place of their respective registered office (siège statutaire) in Luxembourg; |
| (viii) | that during the search made on 15 April 2014 on the web site of the Luxembourg Trade and Companies’ Register, the files of the Companies were complete and accurate at the time of such search and have not been modified since such search; |
OPINION
| 4. | On the basis of the assumptions set out above and subject to the qualifications set out below and to any factual matters, documents or events not disclosed to us, we are of the opinion that: |
| 1) | Each of the Companies is a société à responsabilité limitée incorporated before a Luxembourg notary for an unlimited duration and existing under Luxembourg Law. |
| 2) | Each of the Companies has the necessary corporate power and authority under its Articles of Association to sign, perform and execute the Contractual Documents. |
| 3) | Each of the Companies has taken all necessary corporate action to authorize the signature, performance and execution of the Contractual Documents. |
QUALIFICATIONS
| 5. | The opinions expressed above are subject to the following qualifications: |
| (i) | we do not have detailed knowledge of any documents other than the Documents even if referred to in such Documents; |
| (ii) | we express no view on factual matters; in particular we express no view on the analysis of the managers of each of the Companies according to which they have reviewed and have satisfied themselves that the transactions contemplated by the Contractual Documents are in the best corporate interest of each of the Companies and that each of the Companies derives a corporate benefit from the Contractual Documents and the transactions contemplated thereunder. |
| (iii) | Luxembourg legal concepts are expressed in English terms and not in their original French terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws of other jurisdictions. This opinion may, therefore, only be relied upon under the express condition that any issues of the interpretation or liability arising thereunder will be governed by Luxembourg law and be brought before a court in Luxembourg; |
| (iv) | the opinions set out above are subject to all limitations by reason of national or foreign bankruptcy, insolvency, winding-up, liquidation, moratorium, controlled management, suspension of payment, voluntary arrangement with creditors, fraudulent conveyance, general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally; |
| (v) | the Non-Registration Certificates do not determine conclusively whether or not the judicial decisions referred to therein have occurred. In particular, it is not possible to determine whether any petition has been filed or any similar action has been taken against or on behalf of any of the Companies regarding the opening of insolvency proceedings (faillite), suspension of payments (sursis de paiement), judicial liquidation (liquidation judiciaire), controlled management (gestion controlée) or homologating voluntary arrangements that any of the Companies would have entered into with their respective creditors (concordat préventif de faillite). The Non-Registration Certificates only mention such proceedings if a judicial decision was rendered further to such a request, and if such judicial decision was recorded with the Luxembourg Trade and Companies’ Register on the date referred to in any such Non-Registration Certificates, which differs from the date of issuance of the Non-Registration Certificates; |
| (vi) | in the case of court proceedings in a Luxembourg court or the presentation of the Contractual Documents – either directly or by way of reference – to an autorité constituée, such court or autorité constituée may require registration of all or part of the Contractual Documents with the Administration de l’Enregistrement et des Domaines in Luxembourg, which may result in registration duties, at a fixed rate or an ad valorem rate which depends on the nature of the registered document, becoming due and payable; and |
| (vii) | in the case of court proceedings in a Luxembourg court or the presentation of the Contractual Documents – either directly or by way of reference – to an autorité constituée, such court or autorité constituée may require a translation into French or German of the Contractual Documents; |
| 6. | This Opinion speaks as of the date hereof. No obligation is assumed to update this Opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after the date hereof, which may affect this Opinion in any respect. |
| 7. | This Opinion is addressed solely to the addressees listed in Appendix D and solely for the purpose of the Contractual Documents. It may not, without our prior written consent, be relied upon for any other purpose or be disclosed to or relied upon by any other person. This Opinion is strictly limited to the matters stated herein and does not extend to, and is not to be read as extending by implication to, any agreement or document referred to in the Contractual Documents or otherwise. |
| 8. | This Opinion is given on the basis that it will be governed by and construed in accordance with Luxembourg Law and will be exclusively subject to Luxembourg jurisdiction. |
Yours faithfully,
/s/ Arendt & Medernach
Arendt & Medernach
by Laurent Schummer
APPENDIX A – DEFINITIONS
Articles of Association means any and each of the Articles of Association 1, the Articles of Association 2, the Articles of Association 3, the Articles of Association 4, the Articles of Association 5, the Articles of Association 6, the Articles of Association 7, the Articles of Association 8, as the context may require.
Articles of Association 1 means the document referred to under item 1 in Appendix B.
Articles of Association 2 means the document referred to under item 2 in Appendix B.
Articles of Association 3 means the document referred to under item 3 in Appendix B.
Articles of Association 4 means the document referred to under item 4 in Appendix B.
Articles of Association 5 means the document referred to under item 5 in Appendix B.
Articles of Association 6 means the document referred to under item 6 in Appendix B.
Articles of Association 7 means the document referred to under item 7 in Appendix B.
Articles of Association 8 means the document referred to under item 8 in Appendix B.
Brussels Regulation means the European Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended.
Companies means all of Company 1, Company 2, Company 3, Company 4, Company 5, Company 6, Company 7 and Company 8.
Company 1 means MPT RHM Holdco S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180198.
Company 2 means MPT RHM Christiaan S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180247.
Company 3 means MPT RHM Fontana S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180238.
Company 4 means MPT RHM Hillersbach S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180250.
Company 5 means MPT RHM Klaus S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180245.
Company 6 means MPT RHM Park S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180231.
Company 7 means MPT RHM Sonnenwende S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180222.
Company 8 means MPT RHM Vesalius S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of Luxembourg, whose registered office is at 13-15, avenue de la Liberté, L-1931 Luxembourg, and which is registered with the Luxembourg Trade and Companies Register under number B 180229.
Contractual Documents means the documents listed in Appendix C.
Corporate Documents means the documents listed in Appendix B.
Documents mean the Contractual Documents and the Corporate Documents.
Insolvency Regulation means the Council Regulation (EC) N° 1346/2000 of 29 May 2000 on insolvency proceedings, as amended.
Luxembourg Law means the laws of Luxembourg as they stand as at the date hereof and as such laws are currently interpreted in published case law (except if published within the last thirty days) of the courts of Luxembourg or, to the extent this Opinion concerns documents signed prior to this date, the date of their signature and the period to date.
Mémorial means the Mémorial C, Journal Officiel du Grand-Duché de Luxembourg, Recueil des Sociétés et Associations.
Minutes 1 means the document referred to under item 9 in Appendix B.
Minutes 2 means the document referred to under item 10 in Appendix B.
Minutes 3 means the document referred to under item 11 in Appendix B.
Minutes 4 means the document referred to under item 12 in Appendix B.
Minutes 5 means the document referred to under item 13 in Appendix B.
Minutes 6 means the document referred to under item 14 in Appendix B.
Minutes 7 means the document referred to under item 15 in Appendix B.
Minutes 8 means the document referred to under item 16 in Appendix B.
Non-Registration Certificates means the documents referred to under items 25 to 32 inclusive in Appendix B.
Opinion means this legal opinion.
Resolutions means any or all of Resolutions 1, Resolutions 2, Resolutions 4, Resolutions 5, Resolutions 6, Resolutions 7 and Resolutions 8, as the context may require.
Resolutions 1 means the resolutions passed by the board of managers of Company 1 as shown in the Minutes 1.
Resolutions 2 means the resolutions passed by the board of managers of Company 2 as shown in the Minutes 2.
Resolutions 3 means the resolutions passed by the board of managers of Company 3 as shown in the Minutes 3.
Resolutions 4 means the resolutions passed by the board of managers of Company 4 as shown in the Minutes 4.
Resolutions 5 means the resolutions passed by the board of managers of Company 5 as shown in the Minutes 5.
Resolutions 6 means the resolutions passed by the board of managers of Company 6 as shown in the Minutes 6.
Resolutions 7 means the resolutions passed by the board of managers of Company 7 as shown in the Minutes 7.
Resolutions 8 means the resolutions passed by the board of managers of Company 8 as shown in the Minutes 8.
APPENDIX B – CORPORATE DOCUMENTS
| 1. | A copy of the coordinated articles of association of Company 1 as of 21 January 2014. |
| 2. | A copy of the coordinated articles of association of Company 2 as of 21 January 2014. |
| 3. | A copy of the coordinated articles of association of Company 3 as of 21 January 2014. |
| 4. | A copy of the coordinated articles of association of Company 4 as of 21 January 2014. |
| 5. | A copy of the coordinated articles of association of Company 5 as of 21 January 2014. |
| 6. | A copy of the coordinated articles of association of Company 6 as of 21 January 2014. |
| 7. | A copy of the coordinated articles of association of Company 7 as of 21 January 2014. |
| 8. | A copy of the coordinated articles of association of Company 8 as of 21 January 2014. |
| 9. | A copy of the signed minutes of the meeting of the board of managers of Company 1 held on 10 March 2014. |
| 10. | A copy of the signed minutes of the meeting of the board of managers of Company 2 held on 10 March 2014. |
| 11. | A copy of the signed minutes of the meeting of the board of managers of Company 3 held on 10 March 2014. |
| 12. | A copy of the signed minutes of the meeting of the board of managers of Company 4 held on 10 March 2014. |
| 13. | A copy of the signed minutes of the meeting of the board of managers of Company 5 held on 10 March 2014. |
| 14. | A copy of the signed minutes of the meeting of the board of managers of Company 6 held on 10 March 2014. |
| 15. | A copy of the signed minutes of the meeting of the board of managers of Company 7 held on 10 March 2014. |
| 16. | A copy of the signed minutes of the meeting of the board of managers of Company 8 held on 10 March 2014. |
| 17. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 1. |
| 18. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 2. |
| 19. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 3. |
| 20. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 4. |
| 21. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 5. |
| 22. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 6. |
| 23. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 7. |
| 24. | An electronic excerpt dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register with respect to Company 8. |
| 25. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 1. |
| 26. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 2. |
| 27. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 3. |
| 28. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 4. |
| 29. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 5. |
| 30. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 6. |
| 31. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 7. |
| 32. | A certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 15 April 2014 and issued by the Luxembourg Trade and Companies Register in relation to Company 8. |
APPENDIX C – CONTRACTUAL DOCUMENTS
| 1. | A draft of the supplemental indenture, governed by the laws of the State of New York, to be concluded by and among the Companies, as subsidiary guarantors, MPT Operating Partnership, L.P. and MPT Finance Corporation, as issuers, Medical Properties Trust, Inc., as parent guarantor, certain additional subsidiary guarantors and Wilmington Trust, National Association, as trustee; |
| 2. | A form of the guarantee notation to be signed by the Companies, as subsidiary guarantors, in relation to the abovementioned supplemental indenture; |
APPENDIX D – ADDRESSEES
Medical Properties Trust, Inc.
1000 Urban Center Drive, Suite 501
Birmingham, AL 35242
United States of America
MPT Operating Partnership, L.P.
1000 Urban Center Drive, Suite 501
Birmingham, AL 35242
United States of America
MPT Finance Corporation
1000 Urban Center Drive, Suite 501
Birmingham, AL 35242
United States of America