Exhibit 1.1
EXECUTION VERSION
MEDICAL PROPERTIES TRUST, INC.
12,000,000 Shares
Common Stock
($0.001 par value per Share)
UNDERWRITING AGREEMENT
February 22, 2007
EXECUTION VERSION
UNDERWRITING AGREEMENT
February 22, 2007
UBS Securities LLC
Wachovia Capital Markets, LLC
as Managing Underwriters
c/o UBS Securities LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Medical Properties Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule A
annexed hereto (the "Underwriters"), for whom you are acting as representatives
(in such capacity, the "Representatives"), an aggregate of 9,000,000 shares (the
"Initial Shares") of common stock, par value $0.001 per share, of the Company
(the "Common Stock"). In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional 1,800,000 shares of Common Stock
(the "Additional Shares"). In addition, at the Company's request, UBS Securities
LLC., as agent (in that capacity, the "UBS Forward Seller") for UBS AG, London
Branch (the "UBS Forward Purchaser"), proposes to sell to the Underwriters an
aggregate of 1,500,000 shares of Common Stock ("UBS Borrowed Shares"), and
Wachovia Capital Markets, LLC (in that capacity, the "Wachovia Forward Seller",
and together with the UBS Forward Seller, the "Forward Sellers") acting for
Wachovia Bank, National Association (the "Wachovia Forward Purchaser", and
together with the UBS Forward Purchaser, "Forward Purchasers"), proposes to sell
to the Underwriters an aggregate of 1,500,000 shares of Common Stock ("Wachovia
Borrowed Shares" and together with the UBS Borrowed Shares, the "Borrowed
Shares"), in connection with the letter agreements, dated the date hereof, (i)
between the Company and the UBS Forward Purchaser (the "UBS Forward Agreement")
and (ii) the Company and the Wachovia Forward Purchaser (the "Wachovia Forward
Agreement" and together with the UBS Forward Agreement, the "Forward
Agreements"), relating to the forward sale by the Company of a number of shares
of Common Stock equal to the number of shares of Common Stock to be borrowed and
sold by the Forward Sellers. The Initial Shares and the Borrowed Shares are
hereinafter collectively referred to as the "Firm Shares". The Initial Shares
and the Additional Shares are hereinafter collectively referred to as the as the
"Company Shares". The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "Securities." References herein to
"you" shall refer to the Representatives.
The Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the "Act"), with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-140433) under the Act (the "registration statement"), including a
prospectus, which registration statement incorporates by reference documents
which the Company has filed, or will file, in accordance with the provisions of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange
Act"). Amendments to such registration statement, if necessary or appropriate,
have been similarly prepared and filed with the Commission in accordance with
the Act. Such registration statement, as so amended, has become effective under
the Act.
Except where the context otherwise requires, "Registration
Statement," as used herein, means the registration statement, as amended at the
time of such registration statement's effectiveness for purposes of Section 11
of the Act, as such section applies to the respective Underwriters (the
"Effective Time"), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any
information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent such
information is deemed, pursuant to Rule 430A, Rule 430B or Rule 430C under the
Act, to be part of the registration statement at the Effective Time, and (iii)
any registration statement filed to register the offer and sale of Securities
pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and
by dealers in connection with the offering of the Securities, copies of one or
more preliminary prospectus supplements relating to the Securities. Except where
the context otherwise requires, "Pre-Pricing Prospectus," as used herein, means
each such preliminary prospectus supplement, in the form so furnished, including
any basic prospectus (whether or not in preliminary form) furnished to you by
the Company and attached to or used with such preliminary prospectus supplement.
Except where the context otherwise requires, "Basic Prospectus," as used herein,
means any such basic prospectus and any basic prospectus furnished to you by the
Company and attached to or used with the Prospectus Supplement (as defined
below).
Except where the context otherwise requires, "Prospectus
Supplement," as used herein, means the final prospectus supplement, relating to
the Securities, filed by the Company with the Commission pursuant to Rule 424(b)
under the Act on or before the second business day after the date hereof (or
such earlier time as may be required under the Act), in the form furnished by
the Company to you for use by the Underwriters and by dealers in connection with
the offering of the Securities.
Except where the context otherwise requires, "Prospectus," as
used herein, means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
"Permitted Free Writing Prospectuses," as used herein, means the
documents listed on Schedule B attached hereto and each "road show" (as defined
in Rule 433 under the Act), if any, related to the offering of the Securities
contemplated hereby that is a "written communication" (as defined in Rule 405
under the Act). The Underwriters have not offered or sold and will not offer or
sell, without the Company's consent, any Securities by means of any "free
writing prospectus" (as defined in Rule 405 under the Act) that is required to
be filed by the Underwriters with the Commission pursuant to Rule 433 under the
Act, other than a Permitted Free Writing Prospectus.
"Disclosure Package," as used herein, means any Pre-Pricing
Prospectus or Basic
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Prospectus, in either case together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, plus the items listed on Schedule B
attached hereto.
Any reference herein to the registration statement, the
Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
shall be deemed to refer to and include the documents, if any, incorporated by
reference, or deemed to be incorporated by reference, therein (the "Incorporated
Documents"), including, unless the context otherwise requires, the documents, if
any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
on or after the initial effective date of the Registration Statement, or the
date of such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
As used in this Agreement, "business day" shall mean a day on
which the New York Stock Exchange (the "NYSE") is open for trading. The terms
"herein," "hereof," "hereto," "hereinafter" and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole and not to any
particular section, paragraph, sentence or other subdivision of this Agreement.
The term "or," as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell, and each of the Forward Sellers, severally and not
jointly agrees to sell, to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company and
each Forward Seller the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule A attached hereto, subject to adjustment in
accordance with Section 9 hereof, in each case at a purchase price of $14.82 per
share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effectiveness of this Agreement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
You may from time to time increase or decrease the public offering price after
the initial public offering to such extent as you may determine.
If the Company does not meet all of the conditions to
effectiveness set forth in any Forward Agreement on or prior to the Closing Date
(defined below), the Forward Seller to which such Forward Agreement relates, in
its sole judgment, may choose not to borrow and deliver for sale the Borrowed
Shares. In addition, in the event that either Forward Seller is unable to borrow
and deliver for sale under this Agreement the number of Borrowed Shares
specified in the first paragraph of this Agreement with respect to the Forward
Agreement relating to such Forward Seller or if, in the sole reasonable judgment
of either Forward Purchaser, either it is impracticable to do so or such Forward
Purchaser would incur a weighted average stock loan
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cost of more than a rate equal to 150 basis points per annum to do so, then such
Forward Seller shall only be required to deliver for sale the aggregate number
of shares of Common Stock that such Forward Seller is able to so borrow at or
below such cost. If the number of Borrowed Shares is reduced pursuant to the
preceding sentence of this Section 1, then (i) the number of Borrowed Shares
that either Forward Seller is obligated to sell to each of the Underwriters and
that each of the Underwriters is severally obligated to purchase from such
Forward Seller pursuant to the first paragraph of this Agreement shall be
reduced, pro rata, among the Underwriters (based on the number of Firm Shares
set forth opposite such Underwriter's name in Schedule A hereto and the
aggregate number of Firm Shares to be purchased by all of the Underwriters in
Schedule A hereto), and (ii) the number of Initial Shares that the Company is
obligated to issue and sell to each of the Underwriters and that each of the
Underwriters is severally obligated to purchase from the Company pursuant to the
first paragraph of this Agreement shall be correspondingly increased, pro rata,
among the Underwriters (based on the number of Firm Shares set forth opposite
such Underwriter's name in Schedule A hereto and the aggregate number of Firm
Shares to be purchased by all of the Underwriters in Schedule A hereto) by the
number of Borrowed Shares reduced pursuant to clause (i) above.
If, pursuant to the preceding paragraph, either Forward Seller
does not borrow and deliver for sale the number of Borrowed Shares specified in
the first paragraph of this Agreement, such Forward Seller will use its best
efforts to notify the Company no later than one business day (as hereinafter
defined) prior to the Closing Date. The Company and the Representatives shall
have the right to postpone the Closing Date for a period not exceeding one
business day in order to effect any required changes in any documents or
arrangements arising out of any reduction in the number of Borrowed Shares
delivered by such Forward Seller pursuant to the preceding paragraph. Neither
Forward Seller shall have any liability whatsoever to the Company, the
Underwriters or any other party for any Borrowed Shares that such Forward
Seller, in accordance with the preceding paragraph, does not deliver at the
Closing.
In addition, the Company hereby grants to the several
Underwriters the option (the "Over-Allotment Option") to purchase, and upon the
basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Underwriters shall have the right to purchase,
severally and not jointly, from the Company, ratably in accordance with the
number of Firm Shares to be purchased by each of them, all or a portion of the
Additional Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same purchase price per
share to be paid by the Underwriters to the Company for the Firm Shares. The
Over-Allotment Option may be exercised by UBS Securities LLC ("UBS") and
Wachovia Capital Markets, LLC ("Wachovia") on behalf of the several Underwriters
at any time and from time to time on or before the thirtieth day following the
date of the Prospectus Supplement, by written notice to the Company. Such notice
shall set forth the aggregate number of Additional Shares as to which the
Over-Allotment Option is being exercised and the date and time when the
Additional Shares are to be delivered (any such date and time being herein
referred to as an "additional time of purchase"); provided, however, that no
additional time of purchase shall be earlier than the "time of purchase" (as
defined below) nor earlier than the second business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
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be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as UBS and
Wachovia may determine to eliminate fractional shares), subject to adjustment in
accordance with Section 9 hereof. Additional Shares may be purchased by the
Underwriters solely to cover over-allotments.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and each Forward Seller by Federal Funds
wire transfer against, in the case of the Initial Shares, delivery of the
certificates for the Initial Shares, and in the case of the Borrowed Shares
crediting of such shares of Common Stock, to you through the facilities of The
Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on February 28, 2007 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
9 hereof) ("Closing Date"). The time at which such payment and delivery are to
be made is hereinafter sometimes called the "time of purchase." Electronic
transfer of the Initial Shares shall be made to you at the time of purchase in
such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Initial Shares. Electronic transfer of the
Additional Shares shall be made to you at the additional time of purchase in
such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 7 hereof with
respect to the purchase of the Securities shall be made at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company and the Operating
Partnership. The Company and MPT Operating Partnership, L.P., a Delaware limited
partnership and wholly owned subsidiary of the Company (the "Operating
Partnership"), represent and warrant to and agree with each of the Underwriters,
each Forward Seller and each Forward Purchaser that:
(a) the Registration Statement has heretofore become effective
under the Act or, with respect to any registration statement to be filed
to register the offer and sale of Securities pursuant to Rule 462(b)
under the Act, will be filed with the Commission and become effective
under the Act no later than 10:00 P.M., New York City time, on the date
of determination of the public offering price for the Securities; no
stop order of the Commission preventing or suspending the use of any
Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement,
the Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Company's
knowledge, are contemplated by the Commission;
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(b) the Registration Statement complied when it became
effective, complies as of the date hereof and, as amended or
supplemented, at the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of
Securities, will comply, in all material respects, with the requirements
of the Act; the conditions to the use of Form S-3 in connection with the
offering and sale of the Securities as contemplated hereby have been
satisfied; the Registration Statement meets, and the offering and sale
of the Securities as contemplated hereby complies with, the requirements
of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)
under the Act); the Registration Statement did not, as of the Effective
Time, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; each Pre-Pricing Prospectus complied,
at the time it was filed with the Commission, and complies as of the
date hereof, in all material respects with the requirements of the Act;
at no time during the period that begins on the earlier of the date of
such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was
filed with the Commission and ends at the time of purchase did or will
any Pre-Pricing Prospectus, as then amended or supplemented, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no time
during such period did or will any Pre-Pricing Prospectus, as then
amended or supplemented, together with any combination of one or more of
the then issued Permitted Free Writing Prospectuses, if any, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each Basic
Prospectus complied or will comply, as of its date and the date it was
or will be filed with the Commission, complies as of the date hereof (if
filed with the Commission on or prior to the date hereof) and, at the
time of purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Securities, will
comply, in all material respects, with the requirements of the Act; at
no time during the period that begins on the earlier of the date of such
Basic Prospectus and the date such Basic Prospectus was filed with the
Commission and ends at the time of purchase did or will any Basic
Prospectus, as then amended or supplemented, include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and at no time during such period
did or will any Basic Prospectus, as then amended or supplemented,
together with any combination of one or more of the then issued
Permitted Free Writing Prospectuses, if any, include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; each of the Prospectus Supplement
and the Prospectus will comply, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, the time of purchase,
each additional time of purchase, if any, and at all times during which
a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172
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under the Act or any similar rule) in connection with any sale of
Securities, in all material respects, with the requirements of the Act
(in the case of the Prospectus, including, without limitation, Section
10(a) of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the later
of the time of purchase, the latest additional time of purchase, if any,
and the end of the period during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of
Securities did or will any Prospectus Supplement or the Prospectus, as
then amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; at no time during the period that begins on
the date of such Permitted Free Writing Prospectus and ends at the time
of purchase did or will any Permitted Free Writing Prospectus include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty in this
Section 3(b) with respect to any statement contained in the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted
Free Writing Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use
in the Registration Statement, such Pre-Pricing Prospectus, the
Prospectus or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed or will be filed with the
Commission or at the time such document became or becomes effective, as
applicable, complied or will comply, in all material respects, with the
requirements of the Exchange Act and did not or will not, when taken
together with all other Incorporated Documents, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) prior to the execution of this Agreement, the Company has
not, directly or indirectly, offered or sold any Securities by means of
any "prospectus" (within the meaning of the Act) or used any
"prospectus" (within the meaning of the Act) in connection with the
offer or sale of the Securities, in each case other than the Pre-Pricing
Prospectuses and the Permitted Free Writing Prospectuses, if any; the
Company has not, directly or indirectly, prepared, used or referred to
any Permitted Free Writing Prospectus except in compliance with Rules
164 and 433 under the Act; assuming that such Permitted Free Writing
Prospectus is accompanied or preceded by the most recent Pre-Pricing
Prospectus or the Prospectus, as the case may be, and that such
Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after such
Permitted Free Writing Prospectus was, if required pursuant to Rule
433(d) under the Act, filed with the Commission), the sending or giving,
by any Underwriter, of any Permitted Free Writing Prospectus will
satisfy the provisions of Rule 164 and Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the Pre-Pricing Prospectus
dated February 15, 2007 is a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act,
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including a price range where required by rule; neither the Company nor
the Underwriters are disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the offer and
sale of the Securities, "free writing prospectuses" (as defined in Rule
405 under the Act) pursuant to Rules 164 and 433 under the Act; the
Company is not an "ineligible issuer" (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules 164
and 433 under the Act with respect to the offering of the Securities
contemplated by the Registration Statement; the parties hereto agree and
understand that the content of any and all "road shows" (as defined in
Rule 433 under the Act) related to the offering of the Securities
contemplated hereby is solely the property of the Company;
(d) as of the date of this Agreement, the Company has an
authorized capitalization as set forth in the sections of the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus
entitled "Capitalization" and "Description of capital stock" (and any
similar sections or information, if any, contained in any Permitted Free
Writing Prospectus), and, as of the time of purchase and any additional
time of purchase, as the case may be, the Company shall have an
authorized capitalization as set forth in the sections of the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus
entitled "Capitalization" and "Description of capital stock" (and any
similar sections or information, if any, contained in any Permitted Free
Writing Prospectus) (subject, in each case, to the issuance of shares of
Common Stock upon exercise of stock options and warrants disclosed as
outstanding in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus and the grant
of options under existing stock option plans described in the
Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus); all of the issued and
outstanding shares of capital stock, including the Common Stock, of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right;
application has been, or will be, made to list the Securities on the New
York Stock Exchange (the "NYSE"), and as of the time of purchase, the
Securities shall be duly listed, and admitted and authorized for
trading, subject to official notice of issuance;
(e) the Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Maryland and is
in good standing with the State Department of Assessments and Taxation
of Maryland, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, to execute and deliver
this Agreement and each Forward Agreement and to issue, sell and deliver
the Securities as contemplated herein and in each Forward Agreement;
(f) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate,
reasonably be
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expected to have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and the Subsidiaries (as defined below) taken as a whole, or prevent or
materially interfere with consummation of the transactions contemplated
hereby (a "Material Adverse Effect");
(g) the Company has no subsidiaries (as defined under the Act)
other than MPT of Victoria, LLC ; MPT of Victoria, LP; MPT of Luling,
LLC; MPT of Luling, LP; MPT of Warm Springs, LLC; MPT of Warm Springs,
LP; MPT of Huntington Beach, LLC; MPT of Huntington Beach, LP; MPT of
West Anaheim, LLC; MPT of West Anaheim, LP; MPT of La Palma, LLC; MPT of
▇▇ ▇▇▇▇▇, ▇▇; Medical Properties Trust, LLC; MPT Operating Partnership,
L.P.; MPT Development Services, Inc.; MPT of California, LLC; ▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇; ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, LLC; ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC; ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC; ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC; San ▇▇▇▇▇▇▇ Health
Care Associates; Limited Partnership, MPT of Victorville, LLC; MPT of
Bucks County, LLC; MPT of Bucks County, L.P.; MPT of Bloomington, LLC;
MPT West Houston Hospital, LLC; MPT West Houston Hospital, LP; MPT West
Houston MOB, LLC; MPT West Houston MOB, LP; MPT of North Cypress, LLC;
MPT of ▇▇▇▇▇▇▇▇▇, LLC; MPT of ▇▇▇▇▇▇ Springs, LLC; MPT Finance Company,
LLC; MPT of North Cypress, L.P.; MPT of ▇▇▇▇▇▇▇, LLC; MPT of Chino, LLC;
MPT of Odessa Hospital, LLC; MPT of Odessa Hospital, L.P.; MPT of
▇▇▇▇▇▇▇ Oaks, LLC; MPT of Dallas LTACH, LLC; MPT of Dallas LTACH, L.P.;
MPT of Centinela, LLC; MPT of Centinela, L.P.; MPT of Montclair, LLC;
MPT of Montclair, L.P.; MPT of Portland, LLC (collectively, the
"Subsidiaries"); the Company owns, directly or indirectly, all of the
issued and outstanding capital stock or other ownership interest of each
of the Subsidiaries, other than MPT West Houston MOB, LP of which the
Company owns, directly or indirectly, a majority of the limited
partnership units; other than the capital stock or other ownership
interest of the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity interests or
long-term debt securities of any corporation, firm, partnership, joint
venture, association or other entity; complete and correct copies of the
charters and the bylaws of the Company and each Subsidiary and all
amendments thereto have been delivered to you, and no changes therein
will be made on or after the date hereof through and including the time
of purchase or, if later, any additional time of purchase; each
Subsidiary has been duly formed and is validly existing as a
corporation, limited liability company or limited partnership in good
standing under the laws of the jurisdiction of its incorporation or
organization, with full corporate or other power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any; each
Subsidiary is duly qualified to do business as a foreign corporation or
limited partnership and is in good standing in each jurisdiction where
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares
of capital stock or other ownership interests of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable, have been issued in compliance with all
applicable securities laws, were not issued in violation of any
preemptive right, resale
-9-
right, right of first refusal or similar right and are owned, directly
or indirectly, by the Company subject to no security interest, other
encumbrance or adverse claims, except where such security interests,
other encumbrances or adverse claims would not materially affect or
interfere in any material respect with the Company's ability to exercise
control over each of its Subsidiaries; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding;
(h) the Company Shares have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and free
of statutory and contractual preemptive rights, resale rights, rights of
first refusal and similar rights; the Company Shares, when issued and
delivered against payment therefor as provided herein, will be free of
any restriction upon the voting or transfer thereof (other than as
described in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses) pursuant to
the Company's charter or bylaws or any agreement or other instrument to
which the Company is a party; the shares of Common Stock to be purchased
by the Forward Purchaser from the Company, if any, pursuant to each
Forward Agreement, whether due to physical settlement or as a result of
acceleration of the Forward Agreement in accordance with its terms, have
been duly authorized by the Company and reserved for issuance and, when
issued and delivered by the Company to such Forward Purchaser pursuant
to such Forward Agreement against payment therefor as provided herein,
will be duly and validly issued, fully paid and nonassessable and will
be free of any restriction upon the voting or transfer thereof (other
than as described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses) pursuant to the Company's charter or bylaws or any
agreement or other instrument to which the Company is a party;
(i) the capital stock of the Company, including the Securities,
conforms in all material respects to each description thereof, if any,
contained or incorporated by reference in the Registration Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Securities
are in due and proper form;
(j) this Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership;
(k) each of the Forward Agreements has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the respective Forward Purchaser, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms;
(l) neither the Company nor any of the Subsidiaries is in breach
or violation of or in default under (nor has any event occurred which,
with notice, lapse of time or both, would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder's behalf) the right to
-10-
require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (A) its respective charter or bylaws, or other
organizational documents, or (B) any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which it is
a party or any of the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or (D) any
rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NYSE), or (E) any decree, judgment or
order applicable to the Company or any of the Subsidiaries or any of
their respective properties; except with respect to clauses (B) through
(E) only for any such breach or violation or default that would not
reasonably be expected to have a Material Adverse Effect;
(m) the execution, delivery and performance of this Agreement and
each Forward Agreement, the issuance and sale of the Securities and the
shares of Common Stock upon physical settlement or as a result of
acceleration of either Forward Agreement, the consummation of the
transactions contemplated hereby will not conflict with, result in any
breach or violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in any
breach or violation of, constitute a default under or give the holder of
any indebtedness (or a person acting on such 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 Company or
any Subsidiary pursuant to) (A) the charter or bylaws, or other
organizational document, of the Company or any of the Subsidiaries or
(B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, or (C) any federal,
state, local or foreign law, regulation or rule, or (D) any rule or
regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and
regulations of the NYSE), or (E) any decree, judgment or order
applicable to the Company or any of the Subsidiaries or any of their
respective properties; except with respect to clauses (B) through (E)
only for any such breach or violation or default that would not
reasonably be expected to have a Material Adverse Effect;
(n) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NYSE), or approval of the
stockholders of the Company, is required in connection with the issuance
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or either Forward Agreement,
other than (i) registration of the Securities under the Act, which has
been effected (or, with respect to any registration statement to be
filed hereunder pursuant to Rule 462(b) under the Act, will be effected
in accordance herewith), (ii) any necessary qualification under the
securities or blue sky laws of the
-11-
various jurisdictions in which the Securities are being offered by the
Underwriters or (iii) those that have been obtained or will be obtained
or completed by the time of purchase; and (iv) those the absence of
which would not reasonably be expected to have a Material Adverse
Effect;
(o) except as described in the Registration Statement (excluding
the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus,
(i) no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, except
such rights that have been granted pursuant to the Company's equity
incentive plan, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of Common
Stock or shares of any other capital stock of or other equity interests
in the Company and (iii) no person has the right to act as an
underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Securities; no person has the right,
contractual or otherwise, to cause the Company to register under the Act
any shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company, or to include any such shares or
interests in the Registration Statement or the offering contemplated
thereby;
(p) except as disclosed in the Registration Statement, there are
no actions, suits, claims, investigations or proceedings pending or, to
the Company's or the Operating Partnership's knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any of
their respective directors or officers is or would be a party or of
which any of their respective properties is or would be subject at law
or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency,
or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation,
the NYSE), except any such action, suit, claim, investigation or
proceeding which, if resolved adversely to the Company or any
Subsidiary, would not, individually or in the aggregate, have a Material
Adverse Effect or prevent or materially interfere with consummation of
the transactions contemplated hereby;
(q) KPMG LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is included or
incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus, are independent registered public
accountants as required by the Act and by the rules of the Public
Company Accounting Oversight Board;
(r) Parente ▇▇▇▇▇▇▇▇, LLC, whose report on the consolidated
financial statements of Vibra Healthcare, LLC and its subsidiaries, is
included or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent registered
public accountants as required by the Act and by the rules of the Public
Company Accounting Oversight Board;
(s) the financial statements included or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted
-12-
Free Writing Prospectuses, if any, together with the related notes and
schedules, present fairly the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations, cash flows and changes in
stockholders' equity of the Company for the periods specified and have
been prepared in compliance with the requirements of the Act and
Exchange Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved;
the other financial and statistical data contained or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, are
accurately and fairly presented and prepared on a basis consistent with
the financial statements and books and records of the Company; there are
no financial statements (historical or pro forma) that are required to
be included or incorporated by reference in the Registration Statement,
any Pre-Pricing Prospectus or the Prospectus that are not included or
incorporated by reference as required other than the financial
statements included as an exhibit to the Company's current report on
Form 8-K filed with the SEC on March 17, 2006; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct
or contingent (including any off-balance sheet obligations), not
described in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus; and all
disclosures contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, regarding "non-GAAP
financial measures" (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the Exchange
Act and Item 10 of Regulation S-K under the Act, to the extent
applicable;
(t) subsequent to the respective dates as of which information is
given in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in each
case excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material
adverse change, in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries
taken as a whole, (ii) any transaction which is material to the Company
and the Subsidiaries taken as a whole, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, which is
material to the Company and the Subsidiaries taken as a whole, (iv) any
material change in the capital stock or outstanding indebtedness of the
Company or any Subsidiaries or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any
Subsidiary;
(u) the Company has obtained for the benefit of the Underwriters
the agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit
A hereto, of certain of its directors and "officers" (within the meaning
of Rule 16a-1(f) under the Exchange Act);
(v) neither the Company nor any Subsidiary is, and, after giving
effect to the offering and sale of the Securities and the application of
the proceeds thereof, none of
-13-
them will be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(w) except as would not reasonably be excepted to have a Material
Adverse Effect, (A) each of the Company and the Subsidiaries own, or
have obtained valid and enforceable licenses for, or other rights to
use, the inventions, patent applications, patents, trademarks (both
registered and unregistered), tradenames, service names, copyrights,
trade secrets and other proprietary information described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, as being owned or
licensed by them or which are necessary for the conduct of, or material
to, their respective businesses as currently conducted (collectively,
"Intellectual Property"), and (B) the Company is not aware of any claim
to the contrary or any challenge by any other person to the rights of
the Company or any of the Subsidiaries with respect to the Intellectual
Property;
(x) to the knowledge of the Company and the Operating
Partnership, neither the Company nor any of the Subsidiaries has
infringed or is infringing the intellectual property of a third party,
and neither the Company nor any Subsidiary has received notice of a
claim by a third party to the contrary, except for any such notice that
would not reasonably be expected to have a Material Adverse Effect;
(y) except for matters which would not, individually or in the
aggregate, have a Material Adverse Effect, (i) there is (A) no unfair
labor practice complaint pending or, to the Company's knowledge,
threatened against the Company or any of the Subsidiaries before the
National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements is
pending or, to the Company's knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company's knowledge,
threatened against the Company or any of the Subsidiaries and (C) no
union representation dispute currently existing concerning the employees
of the Company or any of the Subsidiaries, (ii) to the Company's
knowledge, no union organizing activities are currently taking place
concerning the employees of the Company or any of the Subsidiaries and
(iii) there has been no violation of any federal, state, local or
foreign law relating to discrimination in the hiring, promotion or pay
of employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 ("ERISA") or the rules
and regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries;
(z) the Company and the Subsidiaries and their respective
properties, assets and operations, and to the knowledge of the Company
each tenant of the Properties, are in compliance with, and the Company
and each of the Subsidiaries, and to the knowledge of the Company each
tenant of the Properties, hold all permits, authorizations and approvals
required under Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits, authorizations
or approvals would not, individually or in the aggregate, have a
Material Adverse Effect; there are no past, present conditions,
circumstances, activities, practices, actions or omissions that could
-14-
reasonably be expected to give rise to any material costs or liabilities
to the Company or any Subsidiary under, or to interfere with or prevent
compliance by the Company or any Subsidiary with, Environmental Laws;
except as would not, individually or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of the Subsidiaries (i) is
the subject of any investigation, (ii) has received any notice or claim,
(iii) is a party to or affected by any pending or, to the Company's
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 health, safety or 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);
(aa) to the knowledge of the Company and the Operating
Partnership, there are no costs or liabilities associated with any
Environmental Law (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with any Environmental Law or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect;
(bb) to the knowledge of the Company and the Operating
Partnership, none of the entities which prepared appraisals of the
Properties, nor the entities which prepared Phase I or other
environmental assessments with respect to the Properties, was employed
for such purpose on a contingent basis or has any substantial interest
in the Company or any of the Subsidiaries, and none of their directors,
officers or employees is connected with the Company or any of the
Subsidiaries as a promoter, selling agent, officer, director or
employee;
(cc) each of the Company and the Subsidiaries have timely filed
all material tax returns required to be filed through the date hereof or
have properly requested extensions thereof, and all material taxes and
other assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith
and for which adequate reserves have been provided;
(dd) the Company and each of the Subsidiaries maintain or arrange
for insurance covering their respective properties, operations,
personnel and businesses as the
-15-
Company reasonably deems adequate; such insurance insures against such
losses and risks to an extent which is adequate in accordance with
customary industry practice to protect the Company and the Subsidiaries
and their respective businesses; all such insurance is fully in force on
the date hereof;
(ee) neither the Company nor any Subsidiary 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 any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, or referred to or described in, or filed as an exhibit to,
the Registration Statement or any Incorporated Document, and no such
termination or non-renewal has been threatened by the Company or any
Subsidiary or, to the Company's knowledge, any other party to any such
contract or agreement;
(ff) the Company and each of the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with 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;
(gg) the Company has established and maintains and evaluates
"disclosure controls and procedures" (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act) and "internal control over
financial reporting" (as such term is defined in Rule 13a-15 and 15d-15
under the Exchange Act); such disclosure controls and procedures are
designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company'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; the
Company's independent auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) all significant
deficiencies, if any, in the design or operation of internal controls
which could adversely affect the Company'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 the Company's internal controls; all material weaknesses, if
any, in internal controls have been identified to the Company's
independent auditors; since the date of the most recent evaluation of
such disclosure controls and, procedures and internal controls, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses; the principal executive officers (or their equivalents) and
principal financial officers (or their equivalents) of the Company have
made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and any related rules and regulations promulgated
by the Commission, and the statements contained in each such
certification are complete and
-16-
correct; the Company, the Subsidiaries and the Company's directors and
officers are each in compliance in all material respects with all
applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules
and regulations of the Commission and the NYSE promulgated thereunder;
(hh) each "forward-looking statement" (within the meaning of
Section 27A of the Act or Section 21E of the Exchange Act) contained or
incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable
basis and in good faith;
(ii) all statistical or market-related data included or
incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the
Company believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources
to the extent required;
(jj) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company or the Operating Partnership, any employee or
agent of the Company or any Subsidiary has made any payment of funds of
the Company or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation (including, without limitation,
the Foreign Corrupt Practices Act of 1977), which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement, any Pre-Pricing Prospectus or the Prospectus;
(kk) no Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock, from repaying to
the Company any loans or advances to such Subsidiary from the Company or
from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, except as described in
the Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus;
(ll) the issuance and sale of the Securities as contemplated
hereby will not cause any holder of any shares of capital stock,
securities convertible into or exchangeable or exercisable for capital
stock or options, warrants or other rights to purchase capital stock or
any other securities of the Company to have any right to acquire any
shares of preferred stock of the Company;
(mm) the Company has not received any notice from the NYSE
regarding the delisting of the Common Stock from the NYSE;
(nn) except pursuant to this Agreement, neither the Company nor
any of the Subsidiaries has incurred any liability for any finder's or
broker's fee or agent's commission in connection with the execution and
delivery of this Agreement, the Forward Agreements or the consummation
of the transactions contemplated hereby or by
-17-
the Registration Statement;
(oo) neither the Company nor any of the Subsidiaries nor any of
their respective directors, officers, affiliates or controlling persons
has taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
(pp) to the knowledge of the Company and the Operating
Partnership and except as previously disclosed in property condition
reports provided to the Underwriters or their legal counsel, all real
property owned or leased by the Company or any Subsidiary, whether owned
in fee simple or through a joint venture or other partnership (each, a
"Property" and collectively the "Properties"), 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 or any Subsidiary, as the
case may be, has created or caused to be created an adequate reserve or
capital budget to effect reasonably required repairs, maintenance and
capital expenditures; water, storm water, sanitary sewer, electricity
and telephone service are all available at the property lines of such
property over duly dedicated streets or perpetual easements of record
benefiting such property; the Company or the Operating Partnership has
not received any notice of any pending or threatened special assessment,
tax reduction proceeding or other action that could reasonably be
expected to have a Material Adverse Effect;
(qq) each of the Company and the Subsidiaries and to the
knowledge of the Company and the Operating Partnership, each tenant or
proposed tenant of the Properties has all necessary licenses, permits,
authorizations, consents and approvals, possess valid and current
certificates, has made all necessary filings required under any federal,
state or local law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, required in
order to conduct their respective businesses and own their respective
properties and other assets as described in the Registration Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, except to the extent that any failure to
have any such licenses, permits, authorizations, consents or approvals,
to make any such filings or to obtain any such authorizations, consents
or approvals, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; except as disclosed in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, neither the Company nor
any of the Subsidiaries and to the best knowledge of the Company and the
Operating Partnership, each tenant or proposed tenant of the Properties
is required by any applicable law to obtain accreditation or
certification from any governmental agency or authority in order to
conduct the business and own the properties and other assets which it
currently provides or owns or which it proposes to provide or own as
described in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any,
except such accreditations and certifications described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if
-18-
any, all of which have been obtained; neither the Company nor any of the
Subsidiaries and to the best knowledge of the Company and the Operating
Partnership, each tenant or proposed tenant of the Properties is in
violation of, or in default under, or has received any written notice
regarding a possible violation, default or revocation of any such
certificate, license, permit, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company or any of the Subsidiaries
the effect of which, individually or in the aggregate, would result in a
Material Adverse Effect;
(rr) the Company and the Subsidiaries have good and marketable
title in fee simple to all real property, and good title to all personal
property, owned by them, in each case free and clear of all liens,
claims, security interests, pledges, charges, encumbrances,
encroachments, restrictions, mortgages and other defects, except such as
are disclosed in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or listed as an exception to any 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 and the
Subsidiaries; any real property, improvements, equipment and personal
property held under lease by the Company or any Subsidiary are held
under valid, existing and enforceable leases, with such exceptions as
are disclosed in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or are not material and do not interfere with the
use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company or such Subsidiary; the
Company or a Subsidiary has obtained an 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 or any Subsidiary, 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;
(ss) each of the properties listed in the Registration Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, as a property with respect to which the
Company or one of its Subsidiaries has a leasehold interest is the
subject of a lease that has been duly and validly authorized, executed
and delivered by or on behalf of the Company or a Subsidiary, and to the
knowledge of the Company, by each of the other parties thereto and each
such lease constitutes a valid and binding agreement of the parties
thereto, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by
general principles of equity;
(tt) there are no real property interests or loans in respect of
real property that any of the Company and the Subsidiaries directly or
indirectly intends to acquire, lease,
-19-
originate or underwrite or any contracts, letters of intent, term
sheets, agreements, arrangements or understandings with respect to the
direct or indirect acquisition, disposition, origination or underwriting
by the Company or the Subsidiaries of interests in real property or
loans in respect of real property that are required to be described in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, and are not so
described;
(uu) to the knowledge of the Company and the Operating
Partnership, each of the Properties complies with all applicable zoning
laws, ordinances, regulations and deed restrictions or other covenants
in all material respects or, if and to the extent there is a failure to
comply, such failure does not materially impair the value of any of the
Properties and will not result in a forfeiture or reversion of title; to
the knowledge of the Company and the Operating Partnership, there is no
pending or threatened condemnation, zoning change or other similar
proceeding or action that will in any material respect affect the size
or use of, improvements on, or construction on or access to the
Properties, except such zoning changes, proceedings or actions that
individually or in the aggregate would not reasonably be expected to
have a Material Adverse Effect; to the knowledge of the Company and the
Operating Partnership, no lessee of any portion of any of the Properties
is in default under any of the leases governing such properties and
there is no event which, but for the passage of time or the giving of
notice or both would constitute a default under any of such leases,
except such defaults that would not reasonably be expected to have a
Material Adverse Effect; and except as disclosed in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, no tenant under any lease
pursuant to which any of the Subsidiaries leases the Properties has an
option or right of first refusal to purchase the premises leased
thereunder or the building of which such premises are a part, except as
such options or rights of first refusal which, if exercised, would not
reasonably be expected to have a Material Adverse Effect;
(vv) the mortgages and deeds of trust encumbering the real
property owned by the Company and its Subsidiaries are not convertible
nor will the Company hold a participating interest therein and such
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property not to be owned directly or
indirectly by the Company or the Subsidiaries;
(ww) the Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code") for all taxable years
ended on or prior to December 31, 2005, and its current and proposed
method of operation as described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, will enable the Guarantor to continue to meet the
requirements for qualification and taxation as a real estate investment
trust under the Code for its taxable years ending December 31, 2006 and
2007 and thereafter; all statements in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, regarding the Company's qualification and taxation
as a real estate investment trust are correct in all material respects;
the Company presently intends to
-20-
continue to qualify as a real estate investment trust under the Code
this year and for all subsequent years, and the Company does not know of
any event that would cause or is likely to cause the Company to fail to
qualify as a real estate investment trust under the Code for the taxable
years ending December 31, 2006 and 2007 or anytime thereafter;
(xx) the Operating Partnership is and has been at all times
classified as a partnership or disregarded entity, and not as an
association or partnership taxable as a corporation, for federal income
tax purposes; and
(yy) the Company was at all times from its formation on August
27, 2003 through April 6, 2004 an S corporation within the meaning of
Section 1361(a)(1) of the Code.
In addition, any certificate signed by any officer of the Company
or any of the Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Securities shall be deemed
to be a representation and warranty by the Company and the Operating
Partnership, as to matters covered thereby, to each Underwriter, each Forward
Seller and each Forward Purchaser.
4. Representations and Warranties of the Forward Sellers. Each Forward
Seller, severally and not jointly, represents and warrants to each Underwriter
that:
(a) this Agreement has been duly authorized, executed and
delivered by such Forward Seller and, at the Closing Date, such Forward
Seller will have the full right, power and authority to sell, transfer
and deliver the Borrowed Shares;
(b) such Forward Seller will, at the Closing Date, have the free
and unqualified right to transfer the Borrowed Shares to be sold by such
Forward Seller hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind; and upon delivery of the Borrowed Shares and payment of the
purchase price therefor as herein contemplated and assuming such
Underwriter has no notice of any adverse claim, each of the Underwriters
will have the free and unqualified right to transfer the Borrowed Shares
purchased by it from the Forward Seller, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind.
5. Certain Covenants of the Company and the Operating Partnership. The
Company and the Operating Partnership hereby agree:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Securities for offering and sale under
the securities or blue sky laws of such states or other jurisdictions as
you may designate and to maintain such qualifications in effect so long
as you may request for the distribution of the Securities; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of
any such jurisdiction (except service of process with respect to the
offering and sale of the Securities); and to promptly advise
-21-
you of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; provided further, any issuance of Common Stock upon
physical settlement of the Forward Agreements shall not in and of itself
be the basis for any request under this subsection (a);
(b) to make available to the Underwriters in New York City, as
soon as practicable after this Agreement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement), and any documents incorporated by reference therein, as the
Underwriters may request for the purposes contemplated by the Act; in
case any Underwriter is required to deliver (whether physically or
through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Securities, a prospectus after the
nine-month period referred to in Section 10(a)(3) of the Act, or after
the time a post-effective amendment to the Registration Statement is
required pursuant to Item 512(a) of Regulation S-K under the Act, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the Prospectus
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the
Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it
is necessary or appropriate for a post-effective amendment to the
Registration Statement, or a Registration Statement under Rule 462(b)
under the Act, to be filed with the Commission and become effective
before the Shares may be sold, the Company will use its best efforts to
cause such post-effective amendment or such Registration Statement to be
filed and become effective, and will pay any applicable fees in
accordance with the Act, as soon as possible; and the Company will
advise you promptly and, if requested by you, will confirm such advice
in writing, (i) when such post-effective amendment or such Registration
Statement has become effective, and (ii) if Rule 430A under the Act is
used, when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act (which the Company agrees to file in a timely
manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Securities, the Registration Statement shall
cease to comply with the requirements of the Act with respect to
eligibility for the use of the form on which the Registration Statement
was filed with the Commission, to (i) promptly notify you, (ii) promptly
file with the Commission a new registration statement under the Act,
relating to the Securities, or a post-effective amendment to the
Registration Statement, which new registration statement or
post-effective amendment shall comply with the requirements of the Act
and shall be in a form satisfactory to you, (iii) use its best efforts
to cause such new registration statement or post-effective amendment to
become effective under the Act as soon as practicable, (iv) promptly
notify you of such effectiveness and (v) take all other action necessary
or appropriate to permit
-22-
the public offering and sale of the Securities to continue as
contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if any;
(e) to advise you promptly, confirming such advice in writing, at
any time during the period when a prospectus is required by the Act to
be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Securities, of any request by the Commission for amendments or
supplements to the Registration Statement, any Pre-Pricing Prospectus,
the Prospectus or any Permitted Free Writing Prospectus or for
additional information with respect thereto, or of notice of institution
of proceedings for, or the entry of a stop order, suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or
removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement, any
Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters' counsel copies of any such documents for review and
comment a reasonable amount of time prior to any proposed filing and to
file no such amendment or supplement to which you shall object in
writing;
(f) subject to Section 5(e) hereof, to file promptly all reports
and documents and any preliminary or definitive proxy or information
statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Securities; and to provide you, for your
review and comment, with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d)
of the Exchange Act during such period a reasonable amount of time prior
to any proposed filing, and to file no such report, statement or
document to which you shall have objected in writing; and to promptly
notify you of such filing;
(g) to advise the Underwriters promptly of the happening of any
event within the period during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Securities, which event could require the making of any change in the
Prospectus then being used so that the Prospectus would not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and to advise
the Underwriters promptly if, during such period, it shall become
necessary to amend or supplement the Prospectus to cause the Prospectus
to comply with the requirements of the Act, and, in each case, during
such time, subject to Section 5(e) hereof, to prepare and furnish, at
the Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change or to effect such compliance;
(h) to make generally available to its security holders, and to
deliver to you,
-23-
an earnings statement of the Company (which will satisfy the provisions
of Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any
case not later than [insert due date of last 10-K or 10-Q that would
qualify under Rule 158 as an earnings statement covering 12 months after
effectiveness;
(i) to furnish to you copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein) and sufficient copies of the foregoing (other than exhibits)
for distribution of a copy to each of the other Underwriters, in each
case only to the extent such documents are not publicly available on the
Commission's ▇▇▇▇▇ database;
(j) to furnish to you as early as practicable prior to the time
of purchase and any additional time of purchase, as the case may be, but
not later than two business days prior thereto, a copy of the latest
available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been
read by the Company's independent registered public accountants, as
stated in their letter to be furnished pursuant to Section 7(c) hereof;
(k) to apply the net proceeds from the sale of the Securities in
the manner set forth under the caption "Use of proceeds" in the
Prospectus Supplement;
(l) to pay all costs, expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, each Basic
Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus, each Permitted Free Writing Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the
Securities including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters, (iii) the producing, word processing and/or printing
of this Agreement, and any closing documents (including compilations
thereof), the Forward Agreements and the reproduction and/or printing
and furnishing of copies of each thereof to the Underwriters and (except
closing documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the Securities for offering and sale under
state or foreign laws and the determination of their eligibility for
investment under state or foreign law (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters not
to exceed $5000) and the printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to
dealers, (v) any listing of the Securities on any securities exchange or
qualification of the Securities for quotation on the NYSE and any
registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Securities by the National Association of
Securities Dealers, Inc. ("NASD"), including the legal fees and filing
fees and other disbursements of counsel to the Underwriters (not to
exceed $10,000) relating to NASD matters, (vii) the fees and
-24-
disbursements of any transfer agent or registrar for the Shares, (viii)
the costs and expenses of the Company (but not the Underwriters)
relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Securities to prospective
investors and the Underwriters' sales forces, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations, travel, lodging and other expenses
incurred by the officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show,
(ix) the costs and expenses of qualifying the Securities for inclusion
in the book-entry settlement system of the DTC; (x) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities,
and (xi) the performance of the Company's other obligations hereunder;
(m) in connection with the offer and sale of the Securities, to
comply with Rule 433(d) under the Act (without reliance on Rule 164(b)
under the Act) and with Rule 433(g) under the Act;
(n) beginning on the date hereof and ending on, and including,
the date that is 90 days after the date of the Prospectus Supplement
(the "Lock-Up Period"), without the prior written consent of UBS and
Wachovia, not to (i) issue, sell, offer to sell, contract or agree to
sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
and the rules and regulations of the Commission promulgated thereunder,
with respect to, any Common Stock, or any other securities of the
Company or Operating Partnership that are substantially similar to
Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the
foregoing, (ii) file or cause to become effective a registration
statement under the Act relating to the offer and sale of any Common
Stock, or any other securities of the Company or Operating Partnership
that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or
other rights to purchase, the foregoing, (iii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of Common Stock, or any other
securities of the Company or Operating Partnership that are
substantially similar to Common Stock, or any securities convertible
into or exchangeable or exercisable for, or any warrants or other rights
to purchase, the foregoing, whether any such transaction is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise or (iv) publicly announce an intention to effect any
transaction specified in clause (i), (ii) or (iii), except, in each
case, for (A) the registration of the offer and sale of the Securities
as contemplated by this Agreement, (B) the issuance and sale of Common
Stock by the Company to the Forward Purchasers pursuant to the terms of
the respective Forward Agreements, (C) issuances of Common Stock upon
the exercise of options or warrants or the conversion or redemption of
any security disclosed as outstanding in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus, (D) the issuance of
-25-
employee stock options or restricted stock pursuant to stock option
plans described in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus, including the
filing of a registration statement on Form S-8 with respect thereto;
provided, however, that if (a) during the period that begins on the date
that is fifteen (15) calendar days plus three (3) business days before
the last day of the Lock-Up Period and ends on the last day of the
Lock-Up Period, the Company issues an earnings release or material news
or a material event relating to the Company occurs; or (b) prior to the
expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the last day of the Lock-Up Period, then the restrictions imposed by
this Section 5(n) shall continue to apply until the expiration of the
date that is fifteen (15) calendar days plus three (3) business days
after the date on which the issuance of the earnings release or the
material news or material event occurs;
(o) to at all times reserve and keep available, free of
preemptive rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to satisfy any obligations to issue and
deliver shares of its Common Stock pursuant to the Forward Agreements;
(p) prior to the time of purchase or any additional time of
purchase, as the case may be, to issue no press release or other
communication directly or indirectly and hold no press conferences with
respect to the Company or any Subsidiary, the financial condition,
results of operations, business, properties, assets, or liabilities of
the Company or any Subsidiary, or the offering of the Securities,
without your prior consent, which consent will not be unreasonably
withheld;
(q) not, at any time at or after the execution of this Agreement,
to, directly or indirectly, offer or sell any Securities by means of any
"prospectus" (within the meaning of the Act), or use any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of
the Securities, in each case other than the Prospectus;
(r) not to, and to cause the Subsidiaries not to, take, directly
or indirectly, any action designed, or which will constitute, or has
constituted, or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
(s) to use its commercially reasonable best efforts to cause the
Securities to be listed on the NYSE and to maintain such listing;
(t) the Company will use its reasonable best efforts to continue
to meet the requirements to qualify for taxation as a real investment
trust under the Code through its taxable year ended December 31, 2007.
6. Reimbursement of Underwriters' Expenses. If the Securities are not
delivered for any reason other than the termination of this Agreement pursuant
to Section 8(2)(A), Section 8(2)(C), Section 8(2)(D) or Section 8(2)(E) or the
fifth paragraph of Section 9 hereof or the
-26-
default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 5(l) hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of their
counsel.
7. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Operating Partnership on the
date hereof, at the time of purchase and, if applicable, at the additional time
of purchase, the performance by the Company and the Operating Partnership of
their obligations hereunder and to the following additional conditions
precedent:
(a) The Company shall furnish to you at the time of purchase and,
if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇
Procter LLP, counsel for the Company, addressed to the Underwriters and
the Forward Purchasers, and dated the time of purchase or the additional
time of purchase, as the case may be, with executed copies for each of
the other Underwriters, and in form and substance satisfactory to the
Representatives, substantially in the form set forth in Exhibit B
hereto.
(b) The Company shall furnish to you at the time of purchase and,
if applicable, at the additional time of purchase, an opinion of Baker,
Donelson, Bearman, Caldwll & ▇▇▇▇▇▇▇▇▇, P.C., tax counsel of the
Company, addressed to the Underwriters and the Forward Purchasers, and
dated the time of purchase or the additional time of purchase, as the
case may be, with executed copies for each of the other Underwriters,
and in form and substance satisfactory to the Representatives,
substantially in the form set forth in Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated,
respectively, the date of this Agreement, the date of the Prospectus
Supplement, the time of purchase and, if applicable, the additional time
of purchase, and addressed to the Underwriters and Forward Purchasers
(with executed copies for each of the Underwriters) in the forms
satisfactory to the Representatives, which letters shall cover, without
limitation, the various financial disclosures contained in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any.
(d) You shall have received from Parente ▇▇▇▇▇▇▇▇ LLC letters
dated, respectively, the date of this Agreement, the date of the
Prospectus Supplement, the time of purchase and, if applicable, the
additional time of purchase, and addressed to the Underwriters and
Forward Purchasers (with executed copies for each of the Underwriters)
in the forms satisfactory to the Representatives, which letters shall
cover, without limitation, the various financial disclosures contained
in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any.
(e) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
-27-
▇▇▇▇ LLP, counsel for the Underwriters, addressed to the Underwriters
and Forward Purchasers dated the time of purchase or the additional time
of purchase, as the case may be, in form and substance reasonably
satisfactory to the Representatives.
(f) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which you shall
have objected in writing.
(g) The Registration Statement and any registration statement
required to be filed, prior to the sale of the Securities, under the Act
pursuant to Rule 462(b) shall have been filed and shall have become
effective under the Act. The Prospectus Supplement shall have been filed
with the Commission pursuant to Rule 424(b) under the Act at or before
5:30 P.M., New York City time, on the second full business day after the
date of this Agreement (or such earlier time as may be required under
the Act).
(h) Prior to and at the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) none of the Pre-Pricing
Prospectuses or the Prospectus, and no amendment or supplement thereto,
shall include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
(iv) no Disclosure Package, and no amendment or supplement thereto,
shall include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
and (v) none of the Permitted Free Writing Prospectuses, if any, shall
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(i) The Company will, at the time of purchase and, if applicable,
at the additional time of purchase, deliver to you a certificate of its
Chief Executive Officer and its Chief Financial Officer, on behalf of
the Company for itself and as general partner of the Operating
Partnership, dated the time of purchase or the additional time of
purchase, as the case may be, in the form attached as Exhibit D hereto.
(j) The Company will on the date of this Agreement, the date of
the Prospectus Supplement, at the time of purchase and, if applicable,
at the additional time of purchase, deliver to you a certificate of its
Chief Financial Officer, on behalf of the Company for itself and as
general partner of the Operating Partnership, dated the date of this
Agreement, the date of the Prospectus Supplement, the time of purchase
or the additional time of purchase, as the case may be, in form and
substance satisfactory to the Representatives.
(k) You shall have received each of the signed Lock-Up Agreements
referred
-28-
to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in
full force and effect at the time of purchase and the additional time of
purchase, as the case may be.
(l) The Company and the Operating Partnership shall have
furnished to you and to each Forward Purchaser such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or
any Permitted Free Writing Prospectus as of the time of purchase and, if
applicable, the additional time of purchase, as you may reasonably
request.
(m) The Securities shall have been approved for listing on the
NYSE, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(n) The NASD shall not have raised any objection with respect to
the fairness or reasonableness of the underwriting, or other
arrangements of the transactions, contemplated hereby.
8. Effective Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS, if (1) since the time
of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, there has been any change or any development involving a prospective change
in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, the effect of
which change or development is, in the sole judgment of UBS, so material and
adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since the
time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in trading in securities generally on the NYSE, the
American Stock Exchange or the NASDAQ; (B) a suspension or material limitation
in trading in the Company's securities on the NYSE; (C) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (E) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the sole judgment of UBS, makes it
impractical or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (3) since the time of execution
of this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been
-29-
given or made of: (A) any intended or potential downgrading or (B) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or any
Subsidiary by any "nationally recognized statistical rating organization," as
that term is defined in Rule 436(g)(2) under the Act.
If UBS elects to terminate this Agreement as provided in this
Section 8, the Company and each other Underwriter shall be notified promptly in
writing.
If the sale to the Underwriters of the Securities, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement, or if such sale is not carried out
because the Company or Operating Partnership shall be unable to comply with any
of the terms of this Agreement, the Company and the Operating Partnership shall
not be under any obligation or liability under this Agreement (except to the
extent provided in Sections 5(l), 6 and 10 hereof), and the Underwriters shall
be under no obligation or liability to the Company or the Operating Partnership
under this Agreement (except to the extent provided in Section 10 hereof) or to
one another hereunder.
9. Increase in Underwriters' Commitments. Subject to Sections 7 and 8
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 7 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 8
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters (including the
Underwriters, if any, substituted in the manner set forth below) shall take up
and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Securities shall be taken up and paid for by such non-defaulting
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Securities shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate number of Firm Shares set
forth opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to
and include any
-30-
Underwriter substituted under this Section 9 with like effect as if such
substituted Underwriter had originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five business day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company to any Underwriter and without
any liability on the part of any non-defaulting Underwriter to the Company.
Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Indemnity and Contribution.
(a) The Company and the Operating Partnership agree to indemnify,
defend and hold harmless each Underwriter, each Forward Seller, each
Forward Purchaser and each of their respective partners, directors and
officers, and any person who controls any Underwriter, Forward Seller or
Forward Purchaser within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation) which, jointly
or severally, any such Underwriter, Forward Seller or Forward Purchaser
or any such person may incur under the Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or arises out of or is
based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through you to the
Company expressly for use in the Registration Statement or arises out of
or is based upon any omission or alleged omission to state a material
fact in the Registration Statement in connection with such information,
which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact included
in any Prospectus (the term Prospectus for the purpose of this Section
10 being deemed to include any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus and any amendments
or supplements to the foregoing), in any Permitted Free Writing
Prospectus, in any "issuer information" (as defined in Rule 433 under
the Act) of the Company or the Operating Partnership or in any
Prospectus together with any combination of one or more of the Permitted
Free Writing Prospectuses, if any, or arises out of or is based upon any
-31-
omission or alleged omission to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except, with respect to such
Prospectus or Permitted Free Writing Prospectus, insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus
or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in
such information, in the light of the circumstances under which they
were made, not misleading or (iii) any untrue statement or alleged
untrue statement of a material fact included in the Company's current
report on Form 8-K filed with the Commission on January 30, 2007
(including the press release and supplemental operating and financial
data attached as Exhibit 99.1 to the report) or arises out of or is
based upon any omission or alleged omission to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, the Operating Partnership and their directors
and officers, and any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Company, the
Operating Partnership or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact in
such Registration Statement in connection with such information, which
material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, a Prospectus or a Permitted Free Writing
Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free
Writing Prospectus in connection with such information, which material
fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the
light of the circumstances under which they were made, not misleading.
-32-
(c) If any action, suit or proceeding (each, a "Proceeding") is
brought against a person (an "indemnified party") in respect of which
indemnity may be sought against the Company, the Operating Partnership or
an Underwriter, a Forward Seller or Forward Purchaser (as applicable, the
"indemnifying party") pursuant to subsection (a) or (b), respectively, of
this Section 10, such indemnified party shall promptly notify such
indemnifying party in writing of the institution of such Proceeding and
such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify such indemnifying party shall not relieve
such indemnifying party from any liability which such indemnifying party
may have to any indemnified party or otherwise. The indemnified party or
parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such Proceeding or the indemnifying party
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying
party (in which case such indemnifying party shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party
or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood,
however, that such indemnifying party shall not be liable for the expenses
of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any settlement
of any Proceeding effected without its written consent but, if settled
with its written consent, such indemnifying party agrees to indemnify and
hold harmless the indemnified party or parties from and against any loss
or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second sentence of this Section
10(c), then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i)
such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party
in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at
least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault or
-33-
culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 10 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 10 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims referred
to therein, then each applicable indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
or the Operating Partnership on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Operating Partnership on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the aggregate public offering price of the
Securities. The relative fault of the Company or the Operating Partnership
on the one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company, the Operating Partnership and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 10 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding the
provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which
such Underwriter has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 10
are several in proportion to their respective underwriting commitments
-34-
and not joint.
(f) The indemnity and contribution agreements contained in this
Section 10 and the covenants, warranties and representations of the
Company and the Operating Partnership contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or
on behalf of any Underwriter, its partners, directors or officers or any
person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Securities. The Company and each Underwriter agree
promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any of the Company's
officers or directors in connection with the issuance and sale of the
Securities, or in connection with the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus or any Permitted
Free Writing Prospectus.
11. Information Furnished by the Underwriters. The statements set forth in
the second last paragraph on the cover page of the Prospectus and the statements
set forth under the caption "Over-Allotment Option" in the "Underwriting"
section of the Prospectus, only insofar as such statements relate to the amount
of selling concession and reallowance or to over-allotment and stabilization
activities that may be undertaken by the Underwriters, constitute the only
information furnished by or on behalf of the Underwriters, as such information
is referred to in Sections 3 and 10 hereof.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram or facsimile
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to the Representatives c/o UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department and c/o Wachovia Capital Markets,
LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity Syndicate Department
and, if to the Company, shall be sufficient in all respects if delivered or sent
to the Company at the offices of the Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
13. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
14. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with
-35-
respect thereto. The Company and the Operating partnership hereby consent to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against any Underwriter or any indemnified party. Each Underwriter, each Forward
Seller, each Forward Purchaser and the Company and the Operating Partnership (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company and the
Operating Partnership each agree that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company or the Operating Partnership, as applicable, and may be
enforced in any other courts to the jurisdiction of which the Company or the
Operating Partnership, as applicable, is or may be subject, by suit upon such
judgment.
15. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Forward Purchasers, the
Forward Sellers and the Company and the Operating Partnership and to the extent
provided in Section 10 hereof the controlling persons, partners, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
16. No Fiduciary Relationship. The Company and the Operating Partnership
hereby acknowledge that the Underwriters are acting solely as underwriters in
connection with the purchase and sale of the Company's securities. The Company
and the Operating Partnership further acknowledge that the Underwriters are
acting pursuant to a contractual relationship created solely by this Agreement
entered into on an arm's length basis, and in no event do the parties intend
that the Underwriters act or be responsible as a fiduciary to the Company or the
Operating Partnership, their management, stockholders or creditors or any other
person in connection with any activity that the Underwriters may undertake or
have undertaken in furtherance of the purchase and sale of the Company's
securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company or the
Operating Partnership, either in connection with the transactions contemplated
by this Agreement or any matters leading up to such transactions, and the
Company and the Operating Partnership hereby confirm their understanding and
agreement to that effect. The Company, the Operating Partnership and the
Underwriters agree that they are each responsible for making their own
independent judgments with respect to any such transactions and that any
opinions or views expressed by the Underwriters to the Company regarding such
transactions, including, but not limited to, any opinions or views with respect
to the price or market for the Company's securities, do not constitute advice or
recommendations to the Company. The Company and the Operating Partnership hereby
waive and release, to the fullest extent permitted by law, any claims that the
Company or the Operating Partnership may have against the Underwriters with
respect to any breach or alleged breach of any fiduciary or similar duty to the
Company or the Operating Partnership in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions.
-36-
17. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
18. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Company and the Operating Partnership and their successors and
assigns and any successor or assign of any substantial portion of the Company's,
the Operating Partnership's and any of the Underwriters' respective businesses
and/or assets.
19. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is
not a bank and is separate from any affiliated bank, including any U.S. branch
or agency of UBS AG. Because UBS is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-37-
If the foregoing correctly sets forth the understanding among the
Company, the Operating Partnership and the several Underwriters, please so
indicate in the space provided below for that purpose, whereupon this Agreement
and your acceptance shall constitute a binding agreement among the Company, the
Operating Partnership and the Underwriters, severally.
Very truly yours,
MEDICAL PROPERTIES TRUST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman, President & CEO
MPT OPERATING PARTNERSHIP, L.P.
BY: MEDICAL PROPERTIES TRUST, LLC,
ITS GENERAL PARTNER
BY: MEDICAL PROPERTIES TRUST, INC.
ITS SOLE MEMBER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman, President & CEO
Accepted and agreed to as of the date first above written, on behalf of itself
and the other several Underwriters named in Schedule A
By: UBS SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
By: WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS SECURITIES LLC 3,300,000
WACHOVIA CAPITAL MARKETS, LLC 3,300,000
BANC OF AMERICA SECURITIES LLC 2,400,000
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. 2,400,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED 600,000
-------------
Total 12,000,000
=============
SCHEDULE B
1. Public Offering Price Per Share: $15.60
2. Number of Shares Offered: 12,000,000
3. Expected Closing Date: February 28, 2007.
EXHIBIT A
Lock-Up Agreement
February 22, 2007
UBS Securities LLC
Wachovia Capital Markets, LLC
Together with the other Underwriters
named in Schedule A to the
Underwriting Agreement
referred to herein
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with
the proposed
Underwriting Agreement (the "
Underwriting Agreement") to be entered
into by Medical Properties Trust, Inc., a Maryland corporation (the "Company"),
MPT Operating Partnership, L.P., a Delaware limited partnership and wholly owned
subsidiary of the Company, and you and the other underwriters named in Schedule
A to the
Underwriting Agreement, with respect to the public offering (the
"Offering") of common stock, par value $0.001 per share, of the Company (the
"Common Stock").
In order to induce you to enter into the
Underwriting Agreement, the
undersigned agrees that, for a period (the "Lock-Up Period") beginning on the
date hereof and ending on, and including, the date that is 90 days after the
date of the final prospectus supplement relating to the Offering, the
undersigned will not, without the prior written consent of UBS Securities LLC
and Wachovia Capital Markets, LLC, (i) sell, offer to sell, contract or agree to
sell, hypothecate, pledge (other than with respect to Common Stock pledged to a
margin account or otherwise), grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, or file (or participate in
the filing of) a registration statement with the Securities and Exchange
Commission (the "Commission") in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder (the
"Exchange Act") with respect to, any Common Stock or any other securities of the
Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
A-1
the foregoing, whether any such transaction is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (iii) publicly
announce an intention to effect any transaction specified in clause (i) or (ii).
The foregoing sentence shall not apply to (a) the registration of the offer and
sale of Common Stock as contemplated by the
Underwriting Agreement and the sale
of the Common Stock to the Underwriters (as defined in the
Underwriting
Agreement) in the Offering, (b) bona fide gifts, provided the recipient thereof
agrees in writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement or (c) dispositions to any trust for the direct or indirect benefit of
the undersigned and/or the immediate family of the undersigned, provided that
such trust agrees in writing with the Underwriters to be bound by the terms of
this Lock-Up Agreement. For purposes of this paragraph, "immediate family" shall
mean the undersigned and the spouse, any lineal descendent, father, mother,
brother or sister of the undersigned.
Notwithstanding anything to the contrary herein, the restrictions
set forth in this Lock-Up Agreement shall not apply to the establishment of a
trading plan that complies with Rule 10b5-1 under the Exchange Act; provided,
however, that the restrictions herein shall apply in full force to sales made
pursuant to the trading plan during the Lock-Up Period.
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, for the Lock-Up Period, the undersigned will not, without
the prior written consent of UBS Securities LLC and Wachovia Capital Markets,
LLC, make any demand for, or exercise any right with respect to, the
registration of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities.
Notwithstanding the above, if (a) during the period that begins on
the date that is fifteen (15) calendar days plus three (3) business days before
the last day of the Lock-Up Period and ends on the last day of the Lock-Up
Period, the Company issues an earnings release or material news or a material
event relating to the Company occurs; or (b) prior to the expiration of the
Lock-Up Period, the Company announces that it will release earnings results
during the sixteen (16) day period beginning on the last day of the Lock-Up
Period, then the restrictions imposed by this Lock-Up Agreement shall continue
to apply until the expiration of the date that is fifteen (15) calendar days
plus three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs.
The undersigned hereby confirms that the undersigned has not,
directly or indirectly, taken, and hereby covenants that the undersigned will
not, directly or indirectly, take, any action designed, or which has constituted
or will constitute or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of shares of Common Stock.
* * *
A-2
If (i) the Company notifies you in writing that it does not intend
to proceed with the Offering, (ii) the registration statement filed with the
Commission with respect to the Offering is withdrawn or (iii) for any reason the
Underwriting Agreement shall be terminated prior to the "time of purchase" (as
defined in the Underwriting Agreement), this Lock-Up Agreement shall be
terminated and the undersigned shall be released from its obligations hereunder.
Yours very truly,
------------------------------
Name:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
Name Position
---- --------
1. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Chairman, President and CEO and
Director of the Company
2. R. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Executive Vice President and CFO and
Director of the Company
3. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Executive Vice President and COO of
the Company
4. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice Chairman of the Company
5. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Executive Vice President, General
Counsel and Secretary of the Company
A-1-1
EXHIBIT B
OPINION OF ▇▇▇▇▇▇▇ PROCTER LLP
February [ ], 2007
UBS Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Medical Properties Trust, Inc.
Ladies and Gentlemen:
We have acted as counsel for Medical Properties Trust, Inc., a Maryland
corporation (the "Company"), in connection with the sale of 9,000,000 shares of
Common Stock, $0.001 par value per share (the "Common Stock"), of the Company by
the Company to the Underwriters (as defined below) and the sale of 3,000,000
shares of Common Stock to the Underwriters by certain affiliates of the
Underwriters (the "Forward Affiliates") pursuant to forward sale agreements
entered into between the Company and the Forward Affiliates on February 22, 2007
(the "Forward Sale Agreements"). The shares of Common Stock sold to the
Underwriters by the Company and the shares of Common Stock sold to the
Underwriters by the Forward Affiliates are collectively referred to in this
opinion letter as the "Shares". We are furnishing this opinion letter to you
pursuant to Section 7(a) of the Underwriting Agreement, dated as of February 22,
2007 (the "Underwriting Agreement"), among the Company, MPT Operating
Partnership, L.P. (the "Partnership") and UBS Securities LLC and Wachovia
Capital Markets, LLC, as representatives of the Underwriters listed on Schedule
A to the Underwriting Agreement (the "Underwriters"). Capitalized terms used but
not defined herein shall have their respective meanings set forth in the
Underwriting Agreement.
The Company's Registration Statement on Form S-3 (File No. 333-140433) filed by
the Company with the Securities and Exchange Commission (the "Commission") on
February 2, 2007, in the form in which it became effective on February 15, 2007
(the "Effective Date"), is referred to in this opinion letter as the
"Registration Statement," and the prospectus included in the Registration
Statement, as supplemented by the prospectus supplement dated February 22, 2007,
relating to the Shares (the "Prospectus Supplement") as filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933 (the
"Securities Act"), is referred to in this opinion letter as the "Prospectus."
The prospectus included in the Registration Statement, as supplemented by the
preliminary prospectus supplement dated February 15, 2007 is referred to in
UBS Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
February 28, 2007
Page 2
this opinion letter as the "Time of Sale Prospectus".
As used in this opinion letter, "Subsidiary" means each subsidiary of the
Company identified on Exhibit A hereto ("Subsidiary," and collectively,
"Subsidiaries").
We have reviewed the agreements filed as an exhibit to the Company's annual
report on Form 10-K for the year ended December 31, 2005, Exhibit 4.1 to the
Company's Form 8-K filed with the Commission on July 20, 2006 and the exhibits
to the Company's Form 8-K filed with the Commission on November 13, 2006
(collectively, the "Listed Agreements") and made such investigation of law as we
have deemed appropriate to give the opinions 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 representations made in the
Underwriting Agreement, and certificates and other inquiries of officers of the
Company.
Any reference to "our knowledge" or to any matters "known to us," "of which we
are aware" or "coming to our attention," or any variation of any of the
foregoing, means the actual knowledge of the lawyers in the firm who actively
participated in our work on the transactions contemplated by the Underwriting
Agreement or for preparing the particular opinion or confirmation containing
that reference, without any independent investigation.
You have not asked us to pass upon the power and authority of the Underwriters
to enter into the Underwriting Agreement or to effect the transactions
contemplated thereby or as to the disclosure in the Prospectus or Registration
Statement of information relating to the Underwriters in their capacity as
underwriters under the Underwriting Agreement. Accordingly, for the purposes of
this opinion letter, we have assumed that each Underwriter has all requisite
power and authority and has taken all necessary corporate and other action to
enter into the Underwriting Agreement and to effect any such transactions, and
we do not express any opinion herein as to the disclosure or non-disclosure in
the Prospectus, the Registration Statement or any other document of any
information relating to any Underwriter under the Underwriting Agreement.
Our opinion regarding good standing of the Company in numbered paragraph 2 below
is based solely on a certificate of good standing issued by the Department of
Assessment and Taxation of State of Maryland. Our opinion expressed in numbered
paragraph 5 as to the valid existence and good standing of each Subsidiary is
based solely on certificates of good standing or legal existence issued by the
Secretary of State or other appropriate officials of the jurisdiction in which
such Subsidiary is organized, as set forth on Exhibit A attached hereto. Our
opinions in numbered paragraph 6 below regarding the due qualification and good
standing of the Company and each Subsidiary as a foreign corporation, limited
liability company or limited partnership are
UBS Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
February 28, 2007
Page 3
based solely on certificates of the Secretaries of State or other appropriate
officials of the respective jurisdictions identified on Exhibit A to this
opinion letter in which the Company and each Subsidiary is so qualified. We
express no opinion as to the tax good standing of the Company or any Subsidiary
in any jurisdiction.
The opinions set forth below are limited to New York law, Maryland General
Corporation Law ("MGCL"), Delaware Revised Uniform Limited Partnership Act
("DRULPA") and the federal law of the United States. Without limiting the
generality of the foregoing, we express no opinion with respect to (i) state
securities or "Blue Sky" laws, or (ii) state or federal antifraud laws.
Based on and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the Securities
Act. Any required filing of each of the Time of Sale Prospectus or the
Prospectus pursuant to Rule 424(b) under the Act has been made in the manner and
within the time required by Rule 424(b). To our knowledge, based solely upon
oral telephonic advice from one or more members of the Commission's staff, (i)
no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and (ii) no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
2. The Company is validly existing as a corporation in good standing under
Maryland law.
3. The Company has the corporate power and authority to execute and
deliver the Underwriting Agreement and Forward Sale Agreements, and to perform
its obligations thereunder.
4. The Partnership has partnership power and authority to own its
properties and conduct its business as described in the Time of Sale Prospectus
and the Prospectus, and to execute and deliver the Underwriting Agreement and to
perform its obligations thereunder.
5. Each of the Subsidiaries is validly existing as a corporation, limited
liability company or limited partnership in good standing under the law of its
jurisdiction of organization as set forth opposite its name on Exhibit A hereto.
6. Each of the Company and the Subsidiaries is duly qualified to do
business as a foreign corporation, limited liability company or limited
partnership and is in good standing in the jurisdictions set forth opposite its
name on Exhibit A hereto.
UBS Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
February 28, 2007
Page 4
7. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Company and the Partnership.
8. The Forward Sale Agreements have been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and delivery
thereof by the Forward Affiliates, constitute the valid and binding agreement of
the Company, enforceable against it in accordance with its terms.
9. The Company has an authorized and outstanding capitalization as set
forth under the caption "Actual" in the "Capitalization" section in the Time of
Sale Prospectus and the Prospectus.
10. The statements in the Time of Sale Prospectus and Prospectus under the
heading "Description of Capital Stock," insofar as such statements describe the
terms of agreements or the Company's Articles of Incorporation, are correct in
all material respects.
11. The issuance and sale of the Shares, the execution and delivery of the
Underwriting Agreement and the Forward Sale Agreements, and the consummation of
the transactions contemplated therein, do not: (i) require any consent,
approval, license or exemption by, order or authorization of, or filing,
recording or registration by the Company or the Partnership with any New York or
federal governmental authority, except such as may be required under the
securities or Blue Sky laws of any foreign jurisdiction or of any state or other
jurisdiction of the Unites States, as to which we express no opinion and, (ii)
violate the Articles of Incorporation or the By-laws of the Company or the
partnership agreement of the Partnership, MGCL, DRULPA or any federal statute,
rule or regulation, or any court order, judgment or decree, if any, listed in
Schedule A to this opinion letter and will not result in a breach of, or
constitute a default under, any of the Listed Agreements, which the company has
advised are all the material agreements to which they are a party.
12. The Shares have been duly authorized and, when issued in accordance
with the Underwriting Agreement against payment of the consideration set forth
therein, will be validly issued, fully paid and non-assessable, and will not be
subject to any preemptive right in the Articles or the Bylaws of the Company or
arising under the MGCL. The shares to be purchased by the Forward Affiliates
from the Company pursuant to the Forward Sale Agreements have been validly
reserved for issuance.
13. The Common Stock certificate complies in all material respects with
the applicable requirements of the MGCL, the Articles of Incorporation or the
By-laws of the Company.
UBS Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
February 28, 2007
Page 5
14. The Shares have been approved for listing, subject to notice of
issuance, on the New York Stock Exchange.
15. Neither the Company nor any Subsidiary is and, after giving effect to
the offering and sale of the Shares and the application of the proceeds
therefrom as described in the Prospectus, neither will be an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
16. Except as described in the Prospectus, none of the Listed Agreements
grant to any person the right to require the Company to file a registration
under the Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Rights Agreement.
17. We are not representing the Company or the Partnership in any pending
litigation in which it is named defendant that challenges the validity or
enforcement of, or seeks to enjoin the performance of, the Underwriting
Agreement or the Forward Sale Agreements.
Our opinion 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 express no opinion on any provision of the Underwriting Agreement or the
Forward Sale Agreements relating to indemnification or waivers (including,
without limitation, the waiver by any party of any right to trial by jury) to
the extent such indemnification or waivers may be held unenforceable or in
violation of public policy regarding the exculpation of criminal violations,
intentional harm and acts of gross negligence or recklessness or any provision
that requires or relates to liquidated damages or other economic remedies at a
rate or in an amount that a court would determine in circumstances under
applicable law to be commercially reasonable or a penalty or forfeiture.
This opinion letter and the opinions it contains shall be interpreted in
accordance with the Legal Opinion Principles issued by the Committee on Legal
Opinions of the American Bar Association's Business Law Section as published in
53 Business Lawyer 831 (May 1998).
This opinion letter is furnished by us as counsel for the Company to you as
Underwriters and is solely for your benefit in connection with the offering and
sale of the Shares to the Underwriters pursuant to the Underwriting Agreement,
and may not be relied on by you for any other purpose, or furnished to, quoted
or otherwise referred to, or relied on by, in whole or in part, any other
UBS Securities LLC
Wachovia Capital Markets, LLC
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
February 28, 2007
Page 6
person, firm or corporation for any purpose, without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇ PROCTER LLP
EXHIBIT A
[TO BE UPDATED BASED ON CERTIFICATES RECEIVED AT CLOSING]
JURISDICTION(s) IN WHICH COMPANY IS QUALIFIED AS A FOREIGN CORPORATION:
ALABAMA
JURISDICTION(s) IN WHICH
JURISDICTION OF QUALIFIED AS A
SUBSIDIARY ORGANIZATION FOREIGN CORPORATION
---------- ------------ -------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, LLC Delaware Kentucky
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC Delaware Massachusetts
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC Delaware California
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC Delaware Colorado
▇▇ ▇▇▇▇▇ ▇▇▇▇, LLC Delaware New Jersey
Kentfield THCI Holding Company, LLC Delaware California, New Jersey
Medical Properties Trust, LLC Delaware Alabama
MPT Development Services, Inc. Delaware Alabama
MPT Finance Company, LLC Delaware
MPT of Bloomington, LLC Delaware Indiana
MPT of Bucks County, L.P. Delaware Pennsylvania
MPT of Bucks County, LLC Delaware Pennsylvania
MPT of California, LLC Delaware California
MPT of Centinela, L.P. Delaware California
MPT of Centinela, LLC Delaware California
MPT of Chino, LLC Delaware California
MPT of ▇▇▇▇▇▇▇▇▇, LLC Delaware Louisiana
MPT of Dallas LTACH, L.P. Delaware Texas
MPT of Dallas LTACH, LLC Delaware Texas
MPT of ▇▇▇▇▇▇ Springs, LLC Delaware Louisiana
MPT of Huntington Beach LLC Delaware California
MPT of Huntington Beach LP Delaware California
MPT of La Palma LLC Delaware California
MPT of La ▇▇▇▇▇ ▇▇ Delaware California
MPT of Luling LLC Delaware Texas
MPT of Luling LP Delaware Texas
MPT of Montclair, L.P. Delaware California
MPT of Montclair, LLC Delaware
MPT of Munster, LLC Delaware
MPT of North Cypress, L.P. Delaware Texas
MPT of North Cypress, LLC Delaware Texas
MPT of Odessa Hospital, L.P. Delaware Texas
MPT of Odessa Hospital, LLC Delaware Texas
MPT of Portland, LLC Delaware Oregon
MPT of ▇▇▇▇▇▇▇, LLC Delaware California
MPT of ▇▇▇▇▇▇▇ Oaks, LLC Delaware California
MPT of Victoria LLC Delaware Texas
MPT of Victoria LP Delaware Texas
MPT of Victorville, LLC Delaware California
MPT of Warm Springs LLC Delaware Texas
MPT of Warm Springs LP Delaware Texas
MPT of West Anaheim LLC Delaware California
MPT of West Anaheim LP Delaware California
MPT Operating Partnership, L.P. Delaware Massachusetts, Alabama
MPT West Houston Hospital, LLC Delaware Texas
MPT West Houston Hospital, LLC Delaware Texas
MPT West Houston MOB, LLC Delaware Texas
MPT West Houston MOB, LP Delaware Texas
San ▇▇▇▇▇▇▇ Health Care Associates,
Limited Partnership Delaware California
SCHEDULE A
None.
B-1
EXHIBIT C
OPINION OF BAKER, DONELSON, BEARMAN, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC
February [ ], 2007
UBS Securities LLC
Wachovia Capital Markets, LLC
as Managing Underwriters
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Medical Properties Trust, Inc.
Qualification as a Real Estate Investment Trust
Dear Ladies and Gentlemen:
We have acted as counsel to Medical Properties Trust, Inc., a Maryland
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 filed by the Company with the Securities and
Exchange Commission (the "SEC") on February 2, 2007 as amended through the date
hereof (the "Registration Statement"), and in connection with the preparation of
the preliminary prospectus supplement filed with the SEC on February 16, 2007
(the "Pre-Pricing Prospectus"). We are furnishing this opinion to you pursuant
to Section 7(b) of the Underwriting Agreement dated February [ ], 2007, by and
among the Company, MPT Operating Partnership, L.P., a Delaware limited
partnership, (the "Operating Partnership") and you (the "Underwriting
Agreement").
The Company, through the Operating Partnership and its subsidiary
limited liability companies and partnerships (collectively the
"Subsidiaries"), owns interests in healthcare facilities. The Operating
Partnership owns MPT Development Services, Inc., a Delaware corporation and
the Company and MPT Development Services, Inc. have elected for MPT
Development Services, Inc. to be a taxable REIT subsidiary (a "TRS").
In giving this opinion, we have examined the following documents:
1. The Company's Articles of Incorporation filed on August 27, 2003
with the Department of Assessments and Taxation of the State of
Maryland, as amended and restated by Second Articles of Amendment
and Restatement filed on March 29, 2004 and as corrected by the
Certificate of Correction to the Second Articles of Amendment and
Restatement filed on January 3, 2005;
2. The Company's Amended and Restated Bylaws;
3. The Registration Statement;
4. The Pre-Pricing Prospectus;
5. The First Amended and Restated Agreement of Limited Partnership
of the Operating Partnership dated February 29, 2004 (the
"Operating Partnership Agreement") and all amendments thereto;
6. The organizational documents of the Subsidiaries;
7. The TRS election for MPT Development Services, Inc.; and
8. Such other documents as we have deemed necessary or appropriate.
In connection with the opinions rendered below, we have assumed, with your
consent, that:
1. each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an
original, or is accurate, if a copy; and has not been
amended;
2. except for the Company, for which no assumption is made,
each partner of the Operating Partnership (a "Partner")
that is a corporation or other entity has a valid legal
existence; and
3. each Partner has full power, authority, and legal right to
enter into and to perform the terms of the Operating
Partnership Agreement and the transactions contemplated
thereby.
In connection with the opinions rendered below, we also have relied upon
the correctness of the factual representations and covenants contained in that
certain certificate dated February [ ], 2007 and executed by R. ▇▇▇▇▇▇ ▇▇▇▇▇▇ as
Executive Vice President and Chief Financial Officer of the Company (the
"Officer's Certificate"). To the extent such representations and covenants speak
to the intended ownership or operations of the Company, we assume that the
Company will in fact be owned and operated in accordance with such stated
intent.
Based on the documents and assumptions set forth above and the factual
representations set forth in the Officer's Certificate, we are of the opinion
that:
(a) the Company is and has been organized in conformity with
the requirements for qualification to be taxed as a REIT
under the Code commencing with its initial taxable year
ended December 31, 2004, and the Company's current and
proposed method of operations as described in the
Registration Statement and as represented to us by it
satisfies currently, and will enable it to continue to
satisfy in the future, the
requirements for such qualification and taxation as a REIT
under the Code; and
(b) the descriptions of the law and the legal conclusions
contained in the Registration Statement under the caption
"United States Federal Income Tax Considerations" are correct
in all material respects, and the discussion thereunder fairly
summarizes the federal income tax considerations that are
likely to be material to a holder of the common stock of the
Company.
We will not review on a continuing basis the Company's compliance with the
documents or assumptions set forth above, or the representations set forth in
the Officer's Certificate. Accordingly, no assurance can be given that the
actual results of the Company's operations for any given taxable year will
satisfy the requirements for qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and the
Regulations, published administrative interpretations thereof, and published
court decisions. The Service has not issued Regulations or administrative
interpretations with respect to various provisions of the Code relating to REIT
qualification. No assurance can be given that the law will not change in a way
that will prevent the Company from qualifying as a REIT.
THE FOREGOING OPINIONS ARE NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT
BE USED, BY ANY PERSON FOR THE PURPOSE OF AVOIDING UNITED STATES FEDERAL INCOME
TAX PENALTIES, AND WERE WRITTEN TO SUPPORT THE PROMOTION OR MARKETING OF THE
COMPANY'S COMMON STOCK PURSUANT TO THE REGISTRATION STATEMENT. YOU SHOULD SEEK
ADVICE BASED ON YOUR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
THE FOREGOING LANGUAGE IS INTENDED TO SATISFY THE REQUIREMENTS OF SECTION 10.35
OF TREASURY DEPARTMENT CIRCULAR 230.
The foregoing opinions are limited to the United States federal income tax
matters addressed herein, and no other opinions are rendered with respect to
other federal tax matters or to any issues arising under the tax laws of any
other country, or any state or locality. We undertake no obligation to update
the opinions expressed herein after the date of this letter. This opinion letter
is solely for the information and use of the addressees, and it speaks only as
of the date hereof. This opinion letter may not be distributed, relied upon for
any purpose by any other person, quoted in whole or in part or otherwise
reproduced in any document, or filed with any governmental agency without our
prior express written consent.
Very truly yours,
Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,PC
By:
--------------------------------
Authorized Representative
EXHIBIT D
OFFICERS' CERTIFICATE
Each of the undersigned, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President and Chief
Executive Officer of Medical Properties Trust, Inc., a Maryland corporation (the
"Company"), and the sole member of the general partner of MPT Operating
Partnership, L.P., a Delaware Limited partnership ("Operating Partnership"), and
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer of the Company, on behalf of the
Company and Operating Partnership, does hereby certify pursuant to Section 7(i)
of that certain Underwriting Agreement dated February 22, 2007 (the
"Underwriting Agreement") between the Company, the Operating Partnership and, on
behalf of the several Underwriters named therein, UBS Securities LLC and
Wachovia Capital Markets, LLC, that as of the date hereof:
1. He has reviewed the Registration Statement, each Pre-Pricing Prospectus,
the Prospectus and each Permitted Free Writing Prospectus.
2. The representations and warranties of the Company and the Operating
Partnership as set forth in the Underwriting Agreement are true and correct
as of the date hereof and as if made on the date hereof.
3. The Company and the Operating Partnership have performed all of their
obligations under the Underwriting Agreement as are to be performed at or
before the date hereof.
4. The conditions set forth in paragraph (h) of Section 7 of the Underwriting
Agreement have been met.
[add any other deal specific items that were made closing conditions]
Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Underwriting Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
this February [__], 2007.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: President and Chief
Executive Officer
------------------------------------
Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer