REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4.2
EXECUTION VERSION
This REGISTRATION RIGHTS AGREEMENT dated April 26, 2011 (this “Agreement”) is entered
into by and among MPT Operating Partnership, L.P., a Delaware limited partnership (the
“Company”), MPT Finance Corporation, a Delaware corporation (“Xxxxx” and, together
with the Company, the “Issuers”), Medical Properties Trust, Inc., a Maryland corporation
(“Parent”), the other guarantors listed in Schedule 1 hereto (collectively with Parent, the
“Initial Guarantors”), and X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”), as
representative of the several Initial Purchasers listed in Schedule 1 to the Purchase Agreement (as
defined below) (the “Initial Purchasers”).
The Issuers, the Initial Guarantors and the Initial Purchasers are parties to the Purchase
Agreement dated April 19, 2011 (the “Purchase Agreement”), which provides for the sale by
the Issuers to the Initial Purchasers of $450,000,000 aggregate principal amount of the Issuers’
6.875% Senior Notes due 2021 (the “Securities”), which will be guaranteed on an unsecured
senior basis by each of the Guarantors. As an inducement to the Initial Purchasers to enter into
the Purchase Agreement, the Issuers and the Initial Guarantors have agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Additional Guarantor” shall mean any subsidiary of the Issuers that executes a
Guarantee under the Indenture after the date of this Agreement.
“Agreement” shall have the meaning set forth in the preamble.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Issuers and the Guarantors of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act
effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and
supplements to such registration statement, in each case including the Prospectus contained therein
or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Issuers and guaranteed by
the Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities
in exchange for Securities pursuant to the Exchange Offer.
“Xxxxx” shall have the meaning set forth in the preamble.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Issuers or used or referred to by the
Issuers in connection with the sale of the Securities or the Exchange Securities.
“Guarantees” shall mean the guarantees of the Securities and guarantees of the
Exchange Securities by the Guarantors under the Indenture.
“Guarantors” shall mean the Initial Guarantors, any Additional Guarantors and any
Guarantor’s successor that Guarantees the Securities.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of Section 4 and
Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture relating to the Securities dated as of April 26,
2011 among the Issuers, the Initial Guarantors and Wilmington Trust Company, as trustee, and as the
same may be amended from time to time in accordance with the terms thereof.
“Initial Guarantors” shall have the meaning set forth in the preamble.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.
“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.
“Issuers” shall have the meaning set forth in the preamble and shall also include the
Issuers’ successors.
“X.X. Xxxxxx” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal
amount of the outstanding Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by either Issuer or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage or amount; and provided, further,
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that if either Issuer shall issue any additional Securities under the Indenture prior to
consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration
Statement, such additional Securities and the Registrable Securities to which this Agreement
relates shall be treated together as one class for purposes of determining whether the consent or
approval of Holders of a specified percentage of Registrable Securities has been obtained.
“Notice and Questionnaire” shall mean a notice of registration statement and selling
security holder questionnaire distributed to a Holder by the Issuers upon receipt of a Shelf
Request from such Holder.
“Parent” shall have the meaning set forth in the preamble.
“Participating Broker-Dealers” shall have the meaning set forth in Section 4(a)
hereof.
“Participating Holder” shall mean any Holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Issuers in accordance with Section
2(b) hereof.
“Person” shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or political
subdivision thereof.
“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and
regulations of the Securities Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any document incorporated
by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect
to such Securities has become effective under the Securities Act and such Securities have been
exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities cease
to be outstanding or (iii) except in the case of Securities that otherwise remain Registrable
Securities and that are held by an Initial Purchaser and that are ineligible to be exchanged in the
Exchange Offer, when the Exchange Offer is consummated.
“Registration Default” shall mean the occurrence of any of the following: (i) the
Exchange Offer is not completed on or prior to the Target Registration Date, (ii) the Shelf
Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not
become effective on or prior to the Target Registration Date, (iii) if the Issuers received a Shelf
Request pursuant to Section 2(b)(iii), the Shelf Registration Statement required to be filed
thereby has not become effective by the later of (x) 10 Business Days after receipt of the Shelf
Request and (y) the Target Registration Date, (iv) the Shelf Registration Statement, if required by
this Agreement, has become effective and thereafter ceases to be effective or the Prospectus
contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at
any time during the Shelf Effectiveness Period, and such failure to remain effective or usable
exists for more than 30 days (whether or not consecutive) in any 12-month period or (v) the Shelf
Registration Statement, if required by this Agreement, has become effective and thereafter, on more
than two occasions in any 12 month period during the Shelf Effectiveness Period, the Shelf
Registration Statement ceases to be effective or the Prospectus contained therein ceases to be
usable, in each case whether or not permitted by this Agreement.
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“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Issuers and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification
of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto,
any underwriting agreements, securities sales agreements or other similar agreements and any other
documents relating to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Issuers and the Guarantors and, in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the
Participating Holders (which counsel shall be selected by the Participating Holders holding a
majority of the aggregate principal amount of Registrable Securities held by such Participating
Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and
disbursements of the independent registered public accountants of the Issuers and the Guarantors,
including the expenses of any special audits or “comfort” letters required by or incident to the
performance of and compliance with this Agreement, but excluding fees and expenses of counsel to
the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Issuers and the
Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus contained therein or
deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b)
hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the
Issuers and the Guarantors that covers all or a portion of the Registrable Securities (but no other
securities unless approved by a majority in aggregate principal amount of the Securities held by
the Participating Holders) on an appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.
“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.
“Staff” shall mean the staff of the SEC.
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“Target Registration Date” shall mean 270 days after April 26, 2011.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time
to time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are
sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act.
(a) To the extent the Exchange Offer would not violate any applicable law or applicable
interpretations of the Staff or Staff Policy, the Issuers and the Guarantors shall use their
commercially reasonable efforts to (x) cause to be filed an Exchange Offer Registration Statement
covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities
and (y) have such Registration Statement become effective. The Issuers and the Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared
effective by the SEC and use their commercially reasonable efforts to complete the Exchange Offer
not later than 60 days after such effective date.
The Issuers and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder of
record entitled to participate in the Exchange Offer stating, in addition to such other disclosures
as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all
Registrable Securities validly tendered and not properly withdrawn will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20
Business Days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue
to accrue interest but will not retain any rights under this Agreement, except as otherwise
specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the
Exchange Offer will be required to (A) surrender such Registrable Security, together with
the appropriate letters of transmittal, to the institution and at the address and in the
manner specified in the notice, or (B) effect such exchange otherwise in compliance with the
applicable procedures of the depositary for such Registrable Security, in each case prior to
the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close
of business on the last Exchange Date, by (A) sending to the institution and at the address
specified in the notice, a telegram, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable Securities delivered for exchange and a
statement that
such Holder is withdrawing its election to have such Securities exchanged or (B)
effecting such
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withdrawal in compliance with the applicable procedures of the depositary for
the Registrable Securities.
As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Issuers and the Guarantors that (1) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (2) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of
the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405
under the Securities Act) of either Issuer or any Guarantor and (4) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading activities, then such
Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus
to purchasers) in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Issuers and the Guarantors shall:
(I) accept for exchange Registrable Securities or portions thereof validly tendered and
not properly withdrawn pursuant to the Exchange Offer; and
(II) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for exchange by the Issuers and issue, and cause
the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal
in principal amount to the principal amount of the Registrable Securities tendered by such
Holder; provided, however, that, in the case of any Securities held in global form by a
depositary, authentication and delivery to such depositary of one or more Securities in
global form in an equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and delivery requirement.
The Issuers and the Guarantors shall use their commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) In the event that (i) the Issuers and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) hereof is not available or the Exchange Offer may not be
completed as soon as practicable after the Exchange Date because it would violate any applicable
law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason
completed by the Target Registration Date or (iii) upon receipt of a written request (a “Shelf
Request”) from any Initial Purchaser representing that it holds Registrable Securities that are
or were ineligible to be exchanged in the Exchange Offer, the Issuers and the Guarantors shall use
their commercially reasonable efforts to cause to be filed as promptly as practicable after such
determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing
for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf
Registration Statement become effective; provided that no Holder will be entitled to have any
Registrable Securities included in any Shelf Registration Statement, or entitled to use the
prospectus forming a part of such Shelf Registration Statement, until such Holder shall have
delivered a completed and signed Notice and Questionnaire and provided such other information
regarding such Holder to the Issuers as is contemplated by Section 3(b) hereof.
In the event that the Issuers and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Issuers and the Guarantors shall
use their commercially
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reasonable efforts to file and have become effective both an Exchange Offer
Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities
held by the Initial Purchasers after completion of the Exchange Offer.
The Issuers and the Guarantors agree to use their commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective until the Securities cease to be Registrable
Securities (the “Shelf Effectiveness Period”). The Issuers and the Guarantors further
agree to supplement or amend the Shelf Registration Statement, the related Prospectus and any Free
Writing Prospectus if required by the rules, regulations or instructions applicable to the
registration form used by the Issuers for such Shelf Registration Statement or by the Securities
Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of
Registrable Securities with respect to information relating to such Holder, and to use their
commercially reasonable efforts to cause any such amendment to become effective, if required, and
such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to
become usable as soon as thereafter practicable. The Issuers and the Guarantors agree to furnish
to the Participating Holders copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) The Issuers and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided by Rule 462 under the Securities Act.
If a Registration Default occurs, the interest rate on the Registrable Securities will be
increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately
following such Registration Default and (ii) an additional 0.25% per annum with respect to each
subsequent 90-day period, in each case until and including the date such Registration Default ends,
up to a maximum increase of 1.00% per annum. A Registration Default ends when the Securities cease
to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause
(i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a
Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf
Registration Statement becomes effective or (3) in the case of a Registration Default under clause
(iv) or clause (v) of the definition thereof, when the Shelf Registration Statement again becomes
effective or the Prospectus again becomes usable. If at any time more than one Registration
Default has occurred and is continuing, then, until the next date that there is no Registration
Default, the increase in interest rate provided for by this paragraph shall apply as if there
occurred a single Registration Default that begins on the date that the earliest such Registration
Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Issuers and the Guarantors acknowledge that any failure by the Issuers or the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers
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or any Holder may obtain such relief as may be required to
specifically enforce the Issuers’ and the Guarantors’ obligations under Section 2(a) and Section
2(b) hereof.
3. Registration Procedures.
(a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the
Issuers and the Guarantors shall as expeditiously as is commercially reasonable:
(i) prepare and file with the SEC a Registration Statement on the appropriate form
under the Securities Act, which form (A) shall be selected by the Issuers and the
Guarantors, (B) shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the Holders thereof and (C) shall comply as to form in all
material respects with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their commercially reasonable
efforts to cause such Registration Statement to become effective and remain effective for
the applicable period in accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective amendments to
each Registration Statement as may be necessary to keep such Registration Statement
effective for the applicable period in accordance with Section 2 hereof and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so supplemented,
to be filed pursuant to Rule 424 and 430A under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under the Securities Act
that is applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free
Writing Prospectus that is required to be filed by the Issuers or the Guarantors with the
SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not
required to be filed;
(iv) in the case of a Shelf Registration, furnish to each Participating Holder, to
counsel for the Initial Purchasers, to counsel for such Participating Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and
any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter
may reasonably request in order to facilitate the sale or other disposition of the
Registrable Securities thereunder; and, subject to Section 3(c) hereof, the Issuers and the
Guarantors consent to the use of such Prospectus, preliminary prospectus or such Free
Writing Prospectus and any amendment or supplement thereto in accordance with applicable law
by each of the Participating Holders and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the manner described in
such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(v) use their commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such jurisdictions as
any Participating Holder shall reasonably request in writing by the time the applicable
Registration Statement becomes effective; cooperate with such Participating Holders in
connection with any filings required to be made with FINRA; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Participating Holder to complete the
disposition in each such jurisdiction of the Registrable Securities owned by such
Participating Holder; provided that
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neither of the Issuers nor any Guarantor shall
be required to (1) qualify as a foreign corporation or other entity or as a dealer in
securities in any such jurisdiction where it would not otherwise be required to so qualify,
(2) file any general consent to service of process in any such jurisdiction or (3) subject
itself to taxation in any such jurisdiction if it is not so subject;
(vi) notify counsel for the Initial Purchasers and, in the case of a Shelf
Registration, notify each Participating Holder and counsel for such Participating Holders
promptly and, if requested by any such Participating Holder or counsel, confirm such advice
in writing (1) when a Registration Statement has become effective, when any post-effective
amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has
been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus
has been filed, (2) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement, Prospectus or any Free Writing
Prospectus or for additional information after the Registration Statement has become
effective, (3) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, including the receipt by the Issuers of any notice of
objection of the SEC to the use of a Shelf Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the
applicable effective date of a Shelf Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of either Issuer
or any Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable Securities
cease to be true and correct in all material respects or if either Issuer or any Guarantor
receives any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for
such purpose, (5) of the happening of any event during the period a Registration Statement
is effective that makes any statement made in such Registration Statement or the related
Prospectus or any Free Writing Prospectus untrue in any material respect or that requires
the making of any changes in such Registration Statement or Prospectus or any Free Writing
Prospectus in order to make the statements therein not misleading and (6) of any
determination by either Issuer or any Guarantor that a post-effective amendment to a
Registration Statement or any amendment or supplement to the Prospectus or any Free Writing
Prospectus would be appropriate;
(vii) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or, in the case of a Shelf
Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under
the Securities Act, including by filing an amendment to such Registration Statement on the
proper form, at the earliest possible moment and provide immediate notice to each Holder or
Participating Holder of the withdrawal of any such order or such resolution;
(viii) in the case of a Shelf Registration, furnish to each Participating Holder,
without charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without any documents incorporated therein by reference or
exhibits thereto, unless requested);
(ix) in the case of a Shelf Registration, cooperate with the Participating Holders to
facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and enable such Registrable
Securities to be issued in such denominations and registered in such names (consistent with the provisions of the
Indenture)
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as such Participating Holders may reasonably request at least one Business Day
prior to the closing of any sale of Registrable Securities;
(x) upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use
their commercially reasonable efforts to prepare and file with the SEC a supplement or
post-effective amendment to the applicable Exchange Offer Registration Statement or Shelf
Registration Statement or the related Prospectus or any Free Writing Prospectus or any
document incorporated therein by reference or file any other required document so that, as
thereafter delivered (or, to the extent permitted by law, made available) to purchasers of
the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be,
will not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and the Issuers and the Guarantors shall notify the Participating
Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any
Participating Broker-Dealers known to the Issuers (in the case of an Exchange Offer
Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as
promptly as practicable after the occurrence of such an event, and such Participating
Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby
agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be,
until the Issuers and the Guarantors have amended or supplemented the Prospectus or the Free
Writing Prospectus, as the case may be, to correct such misstatement or omission;
(xi) a reasonable time prior to the filing of any Registration Statement, any
Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or a Free Writing Prospectus or of any document that
is to be incorporated by reference into a Registration Statement, a Prospectus or a Free
Writing Prospectus after initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Participating Holders and their counsel) and make such of the
representatives of the Issuers and the Guarantors as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the
Participating Holders or their counsel) available for discussion of such document; and the
Issuers and the Guarantors shall not, at any time after initial filing of a Registration
Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or
supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, or any
document that is to be incorporated by reference into a Registration Statement, a Prospectus
or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Participating Holders and their counsel) shall
not have previously been advised and furnished a copy or to which the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders
or their counsel) shall reasonably object;
(xii) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as
the case may be, not later than the initial effective date of a Registration Statement;
(xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection
with the registration of the Exchange Securities or Registrable Securities, as the case may
be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with the terms of the
Trust Indenture Act; and execute, and use their commercially reasonable efforts to cause the
Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
-10-
(xiv) in the case of a Shelf Registration, make available for inspection by a
representative of the Participating Holders (an “Inspector”), any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement, any
attorneys and accountants designated by a majority in aggregate principal amount of the
Securities held by the Participating Holders and any attorneys and accountants designated by
such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial
and other records, documents and properties of Parent and its subsidiaries, and cause the
respective officers, directors and employees of the Issuers and the Guarantors to supply all
information reasonably requested by any such Inspector, Underwriter, attorney or accountant
in connection with a Shelf Registration Statement; provided that if any such information is
identified by either Issuer or any Guarantor as being confidential or proprietary, each
Person receiving such information shall take such actions as are reasonably necessary to
protect the confidentiality of such information to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests of any
Inspector, Holder or Underwriter;
(xv) [reserved.];
(xvi) if reasonably requested by any Participating Holder, promptly include in a
Prospectus supplement or post-effective amendment such information with respect to such
Participating Holder as such Participating Holder reasonably requests to be included therein
and promptly make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received notification of the matters
to be so included in such filing;
(xvii) in the case of a Shelf Registration, enter into such customary agreements and
take all such other actions in connection therewith (including those requested by the
Holders of a majority in principal amount of the Registrable Securities covered by the Shelf
Registration Statement) in order to expedite or facilitate the disposition of such
Registrable Securities including, but not limited to, an Underwritten Offering and in such
connection, (1) to the extent possible, make such representations and warranties to the
Participating Holders and any Underwriters of such Registrable Securities with respect to
the business of Parent and its subsidiaries and the Registration Statement, Prospectus, any
Free Writing Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and when
requested, (2) obtain opinions of counsel to the Issuers and the Guarantors (which counsel
and opinions, in form, scope and substance, shall be reasonably satisfactory to the
Participating Holders and such Underwriters and their respective counsel) addressed to each
Participating Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort”
letters from the independent registered public accountants of the Issuers and the Guarantors
(and, if necessary, any other registered public accountant of any subsidiary of either
Issuer or any Guarantor, or of any business acquired by either Issuer or any Guarantor for
which financial statements and financial data are or are required to be included in the
Registration Statement) addressed to each Participating Holder (to the extent permitted by
applicable professional standards) and Underwriter of Registrable Securities, such letters
to be in customary form and covering matters of the type customarily covered in “comfort”
letters in connection with underwritten offerings, including but not limited to financial
information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in principal amount of the Registrable Securities
being sold or the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued
-11-
validity of the representations and warranties of the
Issuers and the Guarantors made pursuant to clause (1) above and to evidence compliance with
any customary conditions contained in an underwriting agreement; and
(xviii) so long as any Registrable Securities remain outstanding, cause each Additional
Guarantor upon the creation or acquisition by either Issuer of such Additional Guarantor, to
execute a counterpart to this Agreement in the form attached hereto as Annex A and to
deliver such counterpart, together with an opinion of counsel as to the enforceability
thereof against such entity, to the Initial Purchasers no later than five Business Days
following the execution thereof.
(b) In the case of a Shelf Registration Statement, the Issuers may require each Holder of
Registrable Securities to furnish to the Issuers a Notice and Questionnaire and such other
information regarding such Holder and the proposed disposition by such Holder of such Registrable
Securities as the Issuers and the Guarantors may from time to time reasonably request in writing.
(c) Each Participating Holder agrees that, upon receipt of any notice from the Issuers and the
Guarantors of the happening of any event of the kind described in Section 3(a)(vi)(3) or Section
3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt
of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus
contemplated by Section 3(a)(x) hereof and, if so directed by the Issuers and the Guarantors, such
Participating Holder will deliver to the Issuers and the Guarantors all copies in its possession,
other than permanent file copies then in such Participating Holder’s possession, of the Prospectus
and any Free Writing Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice.
(d) If the Issuers and the Guarantors shall give any notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Issuers and the Guarantors shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the date of the giving
of such notice to and including the date when the Holders of such Registrable Securities shall have
received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary
to resume such dispositions. Such suspension period shall not exceed 30 days in any three month
period or 90 days in any twelve month period; provided that any default under this Section 3(d)
shall be a Registration Default.
(e) The Participating Holders who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks
and manager or managers (each an “Underwriter”) that will administer the offering will be
selected by the Holders of a majority in principal amount of the Registrable Securities included in
such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff has taken the position that any broker-dealer that receives Exchange Securities
for its own account in the Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a “Participating
Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act
and must deliver a prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Issuers and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities
-12-
owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their
prospectus delivery obligation under the Securities Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of
the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Issuers and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement for a period ending on the earlier of (i) 180 days from the date on
which the Registration Statement is declared effective and (ii) the date on which a Participating
Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or
other trading activities, in order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above. The Issuers and the Guarantors further agree that Participating Broker-Dealers
shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available)
during such period in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to either Issuer, any Guarantor or any
Holder with respect to any request that they may make pursuant to Section 4(b) hereof.
5. Indemnification and Contribution.
(a) Each Issuer and each Guarantor, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each Person, if any, who controls any Initial Purchaser or any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation, reasonable legal
fees and other expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are
based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein not misleading,
or (2) any untrue statement or alleged untrue statement of a material fact contained in any
Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer Information”)
filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or
alleged omission to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, in each case
except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or information relating to any
Holder furnished to the Issuers in writing through X.X. Xxxxxx or any selling Holder, respectively,
expressly for use therein. In connection with any Underwritten Offering permitted by Section 3,
the Issuers and the Guarantors, jointly and severally, will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals participating in the
distribution, their respective affiliates and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in connection with any Registration
Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the
Issuers, the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the
Issuers and the Guarantors, each officer of the Issuers and the Guarantors and each Person, if any,
who controls the Issuers, the Guarantors, any Initial Purchaser and any other selling Holder within
the meaning of Section 15
-13-
of the Securities Act or Section 20 of the Exchange Act to the same
extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Issuers in writing by such Holder expressly
for use in any Registration Statement, any Prospectus and any Free Writing Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person in respect of which
indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the
“Indemnified Person”) shall promptly notify the Person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to
notify the Indemnifying Person shall not relieve such Indemnifying Person from any liability that
it may have under paragraph (a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve such Indemnifying Person from any liability that it may have to an Indemnified Person
otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification pursuant to this
Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its
affiliates, directors and officers and any control Persons of such Initial Purchaser shall be
designated in writing by X.X. Xxxxxx, (y) for any Holder, its directors and officers and any
control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in
all other cases shall be designated in writing by the Issuers. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional
-14-
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (B) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to
an Indemnified Person (other than by reason of exceptions provided in those paragraphs) or
insufficient in respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Issuers and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders from receiving
Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Issuers and the Guarantors on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative fault of the
Issuers and the Guarantors on the one hand and the Holders on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Issuers and the Guarantors or by the Holders and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Issuers, the Guarantors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even
if the Holders 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 paragraph (d) above. The
amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no
event shall a Holder be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount
of any damages that such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 5 are several and not joint.
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Issuers or the
Guarantors or the officers or directors of or
any Person controlling the Issuers or the Guarantors, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
-15-
6. General.
(a) No Inconsistent Agreements. The Issuers and the Guarantors represent, warrant and
agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of any other outstanding securities issued
or guaranteed by either Issuer or any Guarantor under any other agreement in effect on the date
hereof, (ii) neither of the Issuers nor any Guarantor will enter into on or after the date of this
Agreement any agreement that is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof, and (iii) neither
of the Issuers nor any Guarantor has previously entered into any agreement in effect on the date
hereof that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Issuers and the Guarantors have
obtained the written consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or
consent; provided that no amendment, modification, supplement, waiver or consent to any departure
from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder. Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by
each of the parties hereto.
(c) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Issuers by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in
the Purchase Agreement; (ii) if to the Issuers and the Guarantors, initially at the Issuers’
address set forth in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this Section 6(c). All such
notices and communications shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands
or other communications shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors, assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders; provided that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The
Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Issuers or the Guarantors with respect to any failure by a Holder to comply with,
or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
-16-
(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Issuers and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only, are
not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement, and any claim, controversy or dispute arising under or
related to this Agreement, shall be governed by and construed in accordance with the laws of the
State of New York.
(j) Entire Agreement; Severability. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral statements and prior
writings with respect thereto. If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or
against public policy, the remainder of the terms, provisions, covenants and restrictions contained
herein shall remain in full force and effect and shall in no way be affected, impaired or
invalidated. The Issuers, the Guarantors and the Initial Purchasers shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, void or unenforceable
provisions.
-17-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| MPT OPERATING PARTNERSHIP, L.P. BY: MEDICAL PROPERTIES TRUST, LLC, ITS GENERAL PARTNER |
||||
| BY: MEDICAL PROPERTIES TRUST, INC., ITS SOLE MEMBER |
||||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| MPT FINANCE CORPORATION |
||||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | President, Secretary and General Manager |
|||
| MEDICAL PROPERTIES TRUST, INC. |
||||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
-18-
|
MPT OF VICTORVILLE, LLC MPT OF BUCKS COUNTY, LLC MPT OF BLOOMINGTON, LLC MPT OF XXXXXXXXX, LLC MPT OF XXXXXX SPRINGS, LLC MPT OF XXXXXXX, LLC MPT OF CHINO, LLC MPT OF XXXXXXX OAKS, LLC MPT OF DALLAS LTACH, LLC MPT OF PORTLAND, LLC MPT OF WARM SPRINGS, LLC MPT OF VICTORIA, LLC MPT OF LULING, LLC MPT OF HUNTINGTON BEACH, LLC MPT OF WEST ANAHEIM, LLC MPT OF LA PALMA, LLC MPT OF PARADISE VALLEY, LLC MPT OF SOUTHERN CALIFORNIA, LLC MPT OF TWELVE OAKS, LLC MPT OF SHASTA, LLC MPT OF XXXXXXX, LLC MPT OF TUCSON, LLC MPT OF BOSSIER CITY, LLC MPT OF WEST VALLEY CITY, LLC MPT OF IDAHO FALLS, LLC MPT OF POPLAR BLUFF, LLC MPT OF BENNETTSVILLE, LLC MPT OF DETROIT, LLC MPT OF BRISTOL, LLC MPT OF NEWINGTON, LLC MPT OF ENFIELD, LLC MPT OF PETERSBURG, LLC MPT OF FAYETTEVILLE, LLC 0000 XXXXXXXX XXXXXX, LLC 0000 XXXXX XXXXXX, LLC MPT OF GARDEN GROVE HOSPITAL, LLC MPT OF GARDEN GROVE MOB, LLC MPT OF SAN DIMAS HOSPITAL, LLC MPT OF SAN DIMAS MOB, LLC MPT OF CHERAW, LLC MPT OF FT. LAUDERDALE, LLC. MPT OF PROVIDENCE, LLC MPT OF SPRINGFIELD, LLC MPT OF WARWICK, LLC MPT OF XXXXXXXXXX, LLC MPT OF ROUND ROCK, LLC MPT OF SHENANDOAH, LLC MPT OF HILLSBORO, LLC MPT OF XXXXXXXX, LLC |
||||
|
MPT OF CLEAR LAKE, LLC MPT OF TOMBALL, LLC MPT OF XXXXXXX, LLC MPT OF CORINTH, LLC MPT OF BAYONNE, LLC MPT OF XXXXXXXX, LLC MPT OF MORGANTOWN, LLC |
||||
| By: | MPT OPERATING PARTNERSHIP, L.P., sole member of each of the above entities |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President and
Chief Financial Officer |
|||
-2-
|
MPT OF BUCKS COUNTY, L.P. |
||||
| By: | MPT OF BUCKS COUNTY, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF DALLAS LTACH, L.P. |
||||
| By: | MPT OF DALLAS LTACH, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC its sole member |
|||
|
MPT OF WARM SPRINGS, L.P. |
||||
| By: | MPT OF WARM SPRINGS, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF VICTORIA, L.P. |
||||
| By: | MPT OF VICTORIA, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF LULING, L.P. |
||||
| By: | MPT OF LULING, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF HUNTINGTON BEACH, L.P. |
||||
| By: | MPT OF HUNTINGTON BEACH, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF WEST ANAHEIM, L.P. |
||||
| By: | MPT OF WEST ANAHEIM, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF XX XXXXX, X.X. |
||||
| By: | MPT OF LA PALMA, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
-2-
|
MPT OF PARADISE VALLEY, L.P. |
||||
| By: | MPT OF PARADISE VALLEY, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF SOUTHERN CALIFORNIA, L.P. |
||||
| By: | MPT OF SOUTHERN CALIFORNIA, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF TWELVE OAKS, L.P. |
||||
| By: | MPT OF TWELVE OAKS, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF SHASTA, L.P. |
||||
| By: | MPT OF SHASTA, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
-3-
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF XXXXXXX, X.X. |
||||
| By: | MPT OF XXXXXXX, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF GARDEN GROVE HOSPITAL, L.P. |
||||
| By: | MPT OF GARDEN GROVE HOSPITAL, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF GARDEN GROVE MOB, L.P. |
||||
| By: | MPT OF GARDEN GROVE MOB, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF SAN DIMAS HOSPITAL, L.P. |
||||
| By: | MPT OF SAN DIMAS HOSPITAL, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
-4-
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF SAN DIMAS MOB, L.P. |
||||
| By: | MPT OF SAN DIMAS MOB, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF XXXXXXXXXX, X.X. |
||||
| By: | MPT OF XXXXXXXXXX, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF ROUND ROCK, L.P. |
||||
| By: | MPT OF ROUND ROCK, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF SHENANDOAH, L.P. |
||||
| By: | MPT OF SHENANDOAH, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
-5-
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF HILLSBORO, L.P. |
||||
| By: | MPT OF HILLSBORO, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
|
MPT OF CLEAR LAKE, L.P. |
||||
| By: | MPT OF CLEAR LAKE, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF TOMBALL, L.P. |
||||
| By: | MPT OF TOMBALL, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF CORINTH, L.P. |
||||
| By: | MPT OF CORINTH, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
-6-
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member | |||
|
MPT OF XXXXXXXX, X.X. |
||||
| By: | MPT OF XXXXXXXX, LLC, its general partner | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
-7-
|
MOUNTAIN VIEW — MPT HOSPITAL, LLC |
||||
| By: | MPT OF IDAHO FALLS, LLC, its managing member | |||
| By: | MPT OPERATING PARTNERSHIP, L.P., its sole member |
|||
| By: | MEDICAL PROPERTIES TRUST, LLC, its general partner |
|||
| By: | MEDICAL PROPERTIES TRUST, INC, its sole member |
|||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President
and Chief Financial Officer |
|||
| Confirmed and accepted as of the date first above written: X.X. XXXXXX SECURITIES LLC For itself and on behalf of the several Initial Purchasers |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Authorized Signatory | ||||
Schedule 1
Initial Guarantors
MPT of Victorville, LLC
|
MPT of Bucks County, L.P. | |
MPT of Bucks County, LLC
|
MPT of Dallas LTACH, L.P. | |
MPT of Bloomington, LLC
|
MPT of Warm Springs, L.P. | |
MPT of Xxxxxxxxx, LLC
|
MPT of Victoria, L.P. | |
MPT of Xxxxxx Springs, LLC
|
MPT of Luling, L.P. | |
MPT of Xxxxxxx, LLC
|
MPT of Huntington Beach, L.P. | |
MPT of Chino, LLC
|
MPT of West Anaheim, L.P. | |
MPT of Xxxxxxx Oaks, LLC
|
MPT of Xx Xxxxx, X.X. | |
MPT of Dallas LTACH, LLC
|
MPT of Paradise Valley, L.P. | |
MPT of Portland, LLC
|
MPT of Southern California, L.P. | |
MPT of Warm Springs, LLC
|
MPT of Twelve Oaks, L.P. | |
MPT of Victoria, LLC
|
MPT of Shasta, L.P. | |
MPT of Luling, LLC
|
MPT of Xxxxxxx, X.X. | |
MPT of Huntington Beach, LLC
|
MPT of Garden Grove Hospital, L.P. | |
MPT of West Anaheim, LLC
|
MPT of Garden Grove MOB, L.P. | |
MPT of La Palma, LLC
|
MPT of San Dimas Hospital, L.P. | |
MPT of Paradise Valley, LLC
|
MPT of San Dimas MOB, L.P. | |
MPT of Southern California, LLC
|
MPT of Xxxxxxxxxx, X.X. | |
MPT of Twelve Oaks, LLC
|
MPT of Round Rock, L.P. | |
MPT of Shasta, LLC
|
MPT of Shenandoah, L.P. | |
MPT of Xxxxxxx, LLC
|
MPT of Hillsboro, L.P. | |
MPT of Tucson, LLC
|
MPT of Clear Lake, L.P. | |
MPT of Bossier City, LLC
|
MPT of Tomball, L.P. | |
MPT of West Valley City, LLC
|
MPT of Corinth, L.P. | |
MPT of Idaho Falls, LLC
|
MPT of Xxxxxxxx, X.X. | |
MPT of Poplar Bluff, LLC |
||
MPT of Bennettsville, LLC |
||
MPT of Detroit, LLC |
||
MPT of Bristol, LLC |
||
MPT of Newington, LLC |
||
MPT of Enfield, LLC |
||
MPT of Petersburg, LLC |
||
MPT of Fayetteville, LLC |
||
0000 Xxxxxxxx Xxxxxx, LLC |
||
0000 Xxxxx Xxxxxx, LLC |
||
MPT of Garden Grove Hospital, LLC |
||
MPT of Garden Grove MOB, LLC |
||
MPT of San Dimas Hospital, LLC |
||
MPT of San Dimas MOB, LLC |
||
MPT of Cheraw, LLC |
||
MPT of Ft. Lauderdale, LLC |
||
MPT of Providence, LLC |
||
MPT of Springfield, LLC |
||
MPT of Warwick, LLC |
||
Mountain View- MPT Hospital, LLC |
||
MPT of Xxxxxxxxxx, LLC |
||
MPT of Round Rock, LLC |
||
MPT of Shenandoah, LLC |
||
MPT of Hillsboro, LLC |
||
MPT of Xxxxxxxx, LLC |
||
MPT of Clear Lake, LLC |
||
MPT of Tomball, LLC |
||
MPT of Xxxxxxx, LLC |
||
MPT of Corinth, LLC |
||
MPT of Bayonne, LLC |
||
MPT of Xxxxxxxx, LLC |
||
MPT of Morgantown, LLC |
Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as
defined in the Registration Rights Agreement, dated April 26, 2011 by and among MPT Operating
Partnership, L.P., a Delaware limited partnership, MPT Finance Corporation, a Delaware corporation,
the guarantors party thereto and X.X. Xxxxxx Securities LLC, on behalf of itself and the other
Initial Purchasers) to be bound by the terms and provisions of such Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of _______________, 201___.
| [GUARANTOR] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
