UNDERWRITING AGREEMENT MEDICAL PROPERTIES TRUST, INC. 26,000,000 shares of common stock, par value $0.001 per share Underwriting Agreement
Exhibit 1.1
MEDICAL PROPERTIES TRUST, INC.
26,000,000 shares of common stock, par value $0.001 per share
April 14, 2010
X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
Medical Properties Trust, Inc., a Maryland corporation (the “Company”), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representatives (the
“Representatives”), an aggregate of 26,000,000 shares of common stock, par value $0.001 per
share, of the Company (the “Underwritten Shares”) and, at the option of the Underwriters,
up to an additional 3,900,000 shares of common stock, par value $0.001 per share of the Company
(the “Option Shares”). The Underwritten Shares and the Option Shares are herein referred
to as the “Shares.” The shares of common stock of the Company to be outstanding after
giving effect to the sale of the Shares are referred to herein as the “Stock.”
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form S-3 (File No. 333-164889), including a prospectus,
relating to the Shares. Such registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities
Act to be part of the registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as used
herein, the term “Preliminary Prospectus” means each prospectus included in such
registration statement (and any amendments thereto) before effectiveness, any prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act and the prospectus included in the
Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the
term “Prospectus” means the prospectus in the form first used (or made available upon
request of purchasers pursuant to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act
(the “Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
(each, an “Incorporated Document”) pursuant to Item 12 of Form S-3 under the Securities
Act, as of the effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to “amend,” “amendment” or
“supplement” with respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information set forth on Annex A, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated April 12, 2010 and each “free writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act), if any, listed on Annex A.
“Applicable Time” means 5:45 p.m., New York City time, on April 14, 2010.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Underwritten Shares to the several Underwriters
as provided in this Agreement, and each Underwriter, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Company the respective number of Underwritten
Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the
“Purchase Price”) of $9.3357.
In addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Shares but not payable on the Option
Shares.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name
of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 10
hereof) bears to the aggregate number of Underwritten Shares being purchased from the Company by
the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares
as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Representatives to the Company; provided that no more than two such
notices may be given on or prior to such thirtieth day. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the
seventh full business day (as hereinafter defined)
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after the date of such notice (unless such time and date are postponed in accordance with the
provisions of Section 10 hereof). Any such notice shall be given at least two business days prior
to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Shares as soon after the effectiveness of this Agreement as in the judgment of the Representatives
is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives in the case of the Underwritten Shares,
at the offices of Skadden, Arps, Slate Xxxxxxx & Xxxx LLP at 10:00 a.m., New York City time, on
April 20, 2010, unless another time or place shall be agreed to by the Representatives and the
Company in writing or, in the case of the Option Shares, on the date and at the time and place
specified by the Representatives in the written notice of the Underwriters’ election to purchase
such Option Shares. The time and date of such payment for the Underwritten Shares is referred to
herein as the “Closing Date,” and the time and date for such payment for the Option Shares,
if other than the Closing Date, is herein referred to as the “Additional Closing Date.”
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date or the Additional Closing
Date, as the case may be, with any transfer taxes payable in connection with the sale of such
Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of
The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Shares contemplated hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company and the Operating Partnership. The
Company and MPT Operating Partnership, L.P., a Delaware limited partnership and majority owned
subsidiary of the Company (the “Operating Partnership”), represent and warrant to and agree
with each of the Underwriters that:
(a) no order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure
Package, at the time of filing thereof, complied in all material respects with the
Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any
untrue statement of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading;
provided that the Company makes no representation and warranty with respect to
any statements
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or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof;
(b) the Pricing Disclosure Package as of the Applicable Time did not, and as of the
Closing Date and as of the Additional Closing Date, as the case may be, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and warranty
with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b) hereof;
(c) other than the Registration Statement, the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, used, authorized, approved or
referred to and will not prepare, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Shares (each such communication by the
Company or its agents and representatives (other than a communication referred to in clause
(i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex A hereto, each electronic
road show and any other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all material respects
with the Securities Act, has been or will be (within the time period specified in Rule 433)
filed in accordance with the Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus accompanying, or delivered prior to delivery of,
such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus or Preliminary
Prospectus in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 7(b) hereof;
(d) the Registration Statement is an “automatic shelf registration statement” as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No
order suspending the effectiveness of the Registration Statement has been issued by the
Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities
Act against the Company or related to the offering of the Shares has been initiated or
threatened by the Commission; as of
the applicable effective date of the Registration Statement and any post-effective amendment
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thereto, the Registration Statement and any such post-effective amendment complied
and will comply in all material respects with the Securities Act, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not misleading; and
as of the date of the Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may be, the Prospectus will
not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto, it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 7(b) hereof;
(e) the documents incorporated by reference in the Registration Statement, the
Prospectus and the Pricing Disclosure Package, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act, and none of such
documents contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed and incorporated by
reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package,
when such documents are filed with the Commission, will conform in all material respects to
the requirements of the Exchange Act and 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;
(f) as of the date of this Agreement, the Company has an authorized capitalization as
set forth in the sections of the Registration Statement, the Pricing Disclosure Package and
the Prospectus entitled “Capitalization” and “Description of capital stock”, and, as of the
time of purchase of the Shares on the Closing Date or any Additional Closing Date, as the
case may be, the Company shall have an authorized capitalization as set forth in the
sections of the Registration Statement, the Pricing Disclosure Package and the Prospectus
entitled “Capitalization” and “Description of capital stock” (subject, in each case, to the
issuance of shares of Stock upon exercise of stock options and warrants, or the exercise,
conversion or redemption of any other equity-based compensatory awards, disclosed as
outstanding in the Registration Statement (excluding the exhibits thereto), the Pricing
Disclosure Package and the Prospectus, the issuance of shares of Stock upon the redemption
of operating partnership units in accordance with the Second Amended and Restated Agreement
of Limited Partnership of the Operating Partnership, disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Package and
the Prospectus, the grant of options and other equity-based awards under existing stock
option and other equity-based compensatory plans described in the Registration Statement
(excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus, and the
issuance of shares of Stock, if any, resulting from the exercise of exchange rights pursuant
to exchangeable senior notes issued by the Operating Partnership as described in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus); all of the issued and outstanding shares of capital stock, including the
Shares, 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 Shares on the New York Stock Exchange (the
“NYSE”), and
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as of the time of purchase of the Shares on the Closing Date or any
Additional Closing Date, as the case may be, the Shares shall be duly listed, and admitted
and authorized for trading, subject to official notice of issuance;
(g) 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 Pricing Disclosure Package and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated herein;
(h) 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
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”);
(i) the Company has no subsidiaries (as defined under the Securities Act) other than
the subsidiaries identified on Schedule 2 hereto (collectively, the “Subsidiaries”);
the Company owns, directly or indirectly, all of the issued and outstanding capital stock or
other ownership interest of each of the Subsidiaries, other than MPT Operating Partnership,
L.P., Wichita Health Associates Limited Partnership, MPT West Houston MOB, L.P. and Mountain
View-MPT Hospital, LLC, of which the Company owns, directly or indirectly, a majority of the
limited partnership units or limited liability company membership interests, as the case may
be; other than the capital stock or other ownership interest of the 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
each Subsidiary and all amendments thereto have been made available to you; 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
Pricing Disclosure Package and the Prospectus, except where the failure to be so in good
standing would not, individually or in the aggregate, have a Material Adverse Effect; each
Subsidiary is duly qualified to do business as a foreign corporation, limited liability
company or limited partnership and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; all of the outstanding
shares of capital stock or other ownership interests of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws, were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right and are wholly or
majority 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
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convert any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
(j) the 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;
(k) the capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus; and the
certificates for the Shares are in due and proper form;
(l) this Agreement has been duly authorized, executed and delivered by the Company and
the Operating Partnership;
(m) 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 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;
(n) the execution, delivery and performance of this Agreement, the issuance and sale of
the Shares, 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;
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(o) 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,
or approval of the stockholders of the Company, is required in connection with the issuance
and sale of the Shares or the consummation by the Company of the transactions contemplated
by this Agreement, other than (i) registration of the Shares under the Securities Act, which
has been effected, (ii) any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the Underwriters, (iii)
those that have been obtained or will be obtained or completed by the time of purchase of
the Shares on the Closing Date or any Additional Closing Date, as the case may be, including
the approval for listing and/or qualification of the Shares for trading on the NYSE; and
(iv) those the absence of which would not reasonably be expected to have a Material Adverse
Effect;
(p) except as described in the Registration Statement (excluding the exhibits thereto),
each Preliminary 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 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 and the issuance of shares of
Stock upon the redemption of outstanding operating partnership units in accordance with the
Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership,
(ii) no person has any preemptive rights, resale rights, rights of first refusal or other
rights to purchase any shares of Stock or shares of any other capital stock of or other
equity interests in the Company, (iii) no person has the right to act as an underwriter or
as a financial advisor to the Company in connection with the offer and sale of the Shares
and (iv) no person has the right, contractual or otherwise, to cause the Company to register
under the Securities Act any shares of 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 hereby;
(q) except as set forth 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;
(r) KPMG LLP, whose report on the consolidated financial statements of the Company and
the Subsidiaries as of December 31, 2007 and for the year ended December 31, 2007 is
included or incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, is an independent registered public accounting firm as required
by the Securities Act and by the rules of the Public Company Accounting Oversight Board;
(s) PricewaterhouseCoopers LLP, whose report on the consolidated financial statements
of the Company and the Subsidiaries as of December 31, 2008 and 2009 and for each of the
years in the two year period ended December 31, 2009 is included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
is an
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independent registered public accounting firm as required by the Securities Act and by
the rules of the Public Company Accounting Oversight Board;
(t) the consolidated financial statements of the Company included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
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
Securities Act and Exchange Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved; the other financial
and statistical data with respect to the Company and the Subsidiaries contained or
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus 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 Preliminary Prospectus or the Prospectus that
are not included or incorporated by reference as required; the Company and the Subsidiaries
do not have any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus; and all disclosures
contained or incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, to the extent applicable;
(u) subsequent to the respective dates as of which information is given in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, in each case
excluding any amendments or supplements to the foregoing made after the execution of this
Agreement, 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;
(v) the Company has obtained for the benefit of the Underwriters “lock-up” agreements,
substantially in the form set forth as Exhibit A hereto, between you and certain
shareholders, directors and “officers” (within the meaning of Rule 16a-1(f) under the
Exchange Act) of the Company (identified on Exhibit B hereto) relating to sales and certain
other dispositions of shares of Stock or certain other securities;
(w) 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 thereof, none of them will be, an
“investment company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”);
(x) except as would not reasonably be expected to have a Material Adverse Effect, (A)
each of the Company and the Subsidiaries own, or have obtained valid and enforceable
9
licenses for, or other rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, service names, copyrights, trade
secrets and other proprietary information described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus as being owned or licensed by them or which
are necessary for the conduct of, or material to, their respective businesses as currently
conducted (collectively, “Intellectual Property”), and (B) 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;
(y) 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;
(z) 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;
(aa) the Company and the Subsidiaries, and to the knowledge of the Company each tenant
of the Properties (as defined below), are in compliance with, and the Company and each of
the Subsidiaries, and to the knowledge of the Company each tenant of the Properties, hold
all permits, authorizations and approvals required under Environmental Laws (as defined
below), except to the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate, have a Material
Adverse Effect; there are no past or present conditions, circumstances, activities,
practices, or actions or omissions on the part of the Company or the Subsidiaries that would
reasonably be expected to give rise to any material costs or liabilities to the Company or
any Subsidiary under, or to interfere with or prevent material compliance by the Company or
any Subsidiary with, Environmental Laws; except as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company nor any of the Subsidiaries
(i) is the subject of any investigation, (ii) has received any notice or written claim,
(iii) is a party to or affected by any pending or, to the 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 the protection, cleanup or restoration of
the environment or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation, other
10
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);
(bb) 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;
(cc) 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;
(dd) 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;
(ee) the Company and each of the Subsidiaries maintain or arrange for insurance
covering their respective properties (not including those properties subject to a triple-net
lease pursuant to which the tenant is responsible for maintaining or arranging for insurance
relating to such property), personnel and businesses as the Company reasonably deems
adequate; such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company and the
Subsidiaries and their respective businesses; to the knowledge of the Company and the
Operating Partnership, all such insurance is fully in force on the date hereof;
(ff) 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 Preliminary Prospectus, the Prospectus or any
Pricing Disclosure Package, 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, except for any communication regarding such
termination or non-renewal which would not reasonably be expected to have a Material Adverse
Effect;
(gg) 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 consolidated financial statements, taken as a
whole, in conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific
11
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;
(hh) 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 (the
“Audit Committee”) have been advised of: (i) all significant deficiencies, if any,
in the design or operation of internal controls which could adversely affect 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 and the Audit Committee; since the date of
the most recent evaluation of such disclosure controls and, procedures and internal
controls, there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the principal executive officers
(or their equivalents) and principal financial officers (or their equivalents) of the
Company have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx Act”) and any related rules and regulations promulgated by the
Commission, and the statements contained in each such certification are complete and
correct; the Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions of the
Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission and the NYSE promulgated
thereunder;
(ii) each “forward-looking statement” (within the meaning of Section 27A of the
Securities Act or Section 21E of the Exchange Act) contained or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus has been made
or reaffirmed with a reasonable basis and in good faith;
(jj) all statistical or market-related data included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus are based on
or derived from sources that the 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;
(kk) 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 Preliminary Prospectus
or the Prospectus;
(ll) the operations of the Company and its Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or
12
similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company or the Operating Partnership,
threatened;
(mm) none of the Company, any of its Subsidiaries or, to the knowledge of the Company
or the Operating Partnership, any director, officer, agent, employee or affiliate of the
Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not, directly or indirectly, use the proceeds of the
offering of the Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC;
(nn) 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 Preliminary Prospectus and the Prospectus;
(oo) the issuance and sale of the Shares 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;
(pp) the Company has not received any notice from the NYSE regarding the delisting of
the Common Stock from the NYSE;
(qq) 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, or the consummation of the
transactions contemplated hereby or by the Registration Statement;
(rr) 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 Shares;
(ss) to the knowledge of the Company and the Operating Partnership and except as
previously disclosed in property condition reports provided to the Underwriters or their
legal counsel, all real property owned or leased by the Company or any Subsidiary, whether
owned in fee simple or through a joint venture or other partnership (each, a
“Property” and collectively the “Properties”), (i) is free of any material
structural defects and all building systems contained therein are in good working order in
all material respects, subject to ordinary wear and tear or (ii) in each instance, the
Company or any Subsidiary, as the case may be, has either caused tenant to be responsible
for such matters or has created or caused to be created an adequate reserve or capital
budget to effect reasonably required repairs, maintenance and capital expenditures; to the
13
knowledge of the Company and the Operating Partnership, water, storm water, sanitary
sewer, electricity and telephone service are all available at the property lines of such
property over duly dedicated streets or perpetual easements of record benefiting such
property; to the knowledge of the Company and the Operating Partnership, no notice of any
pending or threatened special assessment, tax reduction proceeding or other action that
could reasonably be expected to have a Material Adverse Effect has been received;
(tt) each of the Company and the Subsidiaries has all necessary licenses, permits,
authorizations, consents and approvals, possess valid and current certificates, has made all
necessary filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other persons,
required in order to conduct their respective businesses and own their respective properties
and other assets as described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, except to the extent that any failure to have any such licenses,
permits, authorizations, consents or approvals, to make any such filings or to obtain any
such authorizations, consents or approvals, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company
and the Operating Partnership after due inquiry, each tenant or proposed tenant of the
Properties has all necessary licenses, permits, authorizations, consents and approvals,
possess valid and current certificates, except to the extent that any failure to have any
such licenses, permits, authorizations, consents or approvals, to make any such filings or
to obtain any such authorizations, consents or approvals, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect; each tenant or proposed
tenant of the Properties is responsible for making all necessary filings required under any
federal, state or local law, regulation or rule and obtain all necessary authorizations,
consents and approvals from other persons, required in order to conduct their respective
businesses and own their respective properties and other assets as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and to the
knowledge of the Company and the Operating Partnership, each tenant or proposed tenant of
the Properties has made all such filings and obtained all such authorizations, consents and
approvals, if any, except to the extent that any failure to have any such licenses, permits,
authorizations, consents or approvals, to make any such filings or to obtain any such
authorizations, consents or approvals, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the
Company nor any of the Subsidiaries and to the knowledge of the Company and the Operating
Partnership; no tenant or proposed tenant of the Properties is required by any applicable
law to obtain accreditation or certification from any governmental agency or authority in
order to conduct the business or own the properties and other assets which it currently
provides or owns or which it proposes to provide or own as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, except such accreditations and
certifications described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus all of which have been obtained, except to the extent that any failure to
have any such accreditation or certification, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the
Subsidiaries and to the knowledge of the Company and the Operating Partnership, no 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;
14
(uu) 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 Pricing Disclosure Package and the Prospectus or listed as
an exception to any owner’s or leasehold title insurance policy with respect to such real
property and personal property made available by the Company to the Underwriters or their
counsel or such as do not materially and adversely affect the value of such property and do
not materially interfere with the use made or proposed to be made of such property by the
Company 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 Pricing Disclosure Package and the Prospectus or are not material and do not interfere
with the use made or proposed to be made of such real property, improvements, equipment or
personal property by the Company 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;
(vv) each of the properties listed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus 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;
(ww) there are no real property interests or loans in respect of real property that any
of the Company and the Subsidiaries directly or indirectly intends to acquire, lease,
originate or underwrite or any contracts, letters of intent, term sheets, agreements,
arrangements or understandings with respect to the direct or indirect acquisition,
disposition, origination or underwriting by the Company or the Subsidiaries of interests in
real property or loans in respect of real property that are required to be described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and are not so
described;
(xx) 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
15
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 Pricing Disclosure Package and the Prospectus, no tenant under any lease
pursuant to which any of the Subsidiaries leases the Properties has an option or right of
first refusal to purchase the premises leased thereunder or the building of which such
premises are a part, except as such options or rights of first refusal which, if exercised,
would not reasonably be expected to have a Material Adverse Effect;
(yy) 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;
(zz) 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, 2009, beginning with
its taxable year that began on April 6, 2004 and ended on December 31, 2004, and its current
and proposed method of operation as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will enable the Company to continue to meet the
requirements for qualification and taxation as a real estate investment trust under the Code
for its taxable year ending December 31, 2010 and thereafter; all statements in the
Registration Statement, the Pricing Disclosure Package and the Prospectus regarding the
Company’s qualification and taxation as a real estate investment trust are correct in all
material respects; the Company presently intends to continue to qualify as a real estate
investment trust under the Code this year and for all subsequent years, and the Company does
not know of any existing condition that would cause or is likely to cause the Company to
fail to qualify as a real estate investment trust under the Code for the taxable year ending
December 31, 2010 or anytime thereafter;
(aaa) 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;
(bbb) 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; and
(ccc) at the time of filing the Registration Statement and any post-effective amendment
thereto, at the earliest time thereafter that the Company or any offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the
Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” and is
a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act.
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 Shares shall be deemed to be a representation and warranty by the Company or such
Subsidiary, as to matters covered thereby, to each Underwriter.
4. Further Agreements of the Company and the Operating Partnership. The Company and
the Operating Partnership covenant and agree with each Underwriter that:
16
(a) Required Filings. The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares; and will furnish copies of the Prospectus and each
Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters
in New York City prior to 10:00 a.m., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as the Representatives may
reasonably request. The Company will pay the registration fee for this offering within the
time period required by Rule 456(b)(1) under the Securities Act (without giving effect to
the proviso therein).
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representatives, two signed copies of the Registration Statement as originally filed and
each amendment thereto, in each case including all exhibits and consents filed therewith;
and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference therein and each
Issuer Free Writing Prospectus) as the Representatives may reasonably request, in case of
(i) and (ii)(A) only to the extent such documents are not publicly available on the
Commission’s Electronic Data Gathering, Analysis, and Retrieval system. As used herein, the
term “Prospectus Delivery Period” means such period of time after the first date of
the public offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered (or required to be
delivered but for Rule 172 under the Securities Act) in connection with sales of the Shares
by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. During the Prospectus
Delivery Period, before preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to the
Registration Statement or the Prospectus, the Company will furnish to the Representatives
and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus,
amendment or supplement for review and will not prepare, use, authorize, approve, refer to
or file any such Issuer Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. Prior to the later of (x) Closing or (y) the
expiration of the Prospectus Delivery Period, the Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or
any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iii)
of any request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission for any
additional information; (iv) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period
as a result of which the Prospectus, the
17
Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Pricing Disclosure Package or any such
Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the
receipt by the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act; and (vii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Shares for offer and sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and the Company will
use its commercially reasonable best efforts to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or
suspending any such qualification of the Shares and, if any such order is issued, to obtain
as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period, (i) any event
shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission and furnish to the Underwriters and to such
dealers as the Representatives may designate such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law and
(2) if at any time prior to the Closing Date, (i) any event shall occur or condition shall
exist as a result of which the Pricing Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances
existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with
law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and
furnish to the Underwriters and to such dealers as the Representatives may designate such
amendments or supplements to the Pricing Disclosure Package as may be necessary so that the
statements in the Pricing Disclosure Package as so amended or supplemented will not, in the
light of the circumstances existing when the Pricing Disclosure Package is delivered to a
purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect so long as required for
distribution of the Shares; provided that the Company shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation
in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security
holders and the Representatives as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated
18
thereunder covering a period of at least twelve months beginning with the first fiscal
quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the Prospectus (the
“Lock-Up Period”), the Company will not (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, or file with the Commission a registration statement under the Securities Act
relating to, any shares of Stock or any securities convertible into or exercisable or
exchangeable for Stock, or publicly disclose the intention to make any such offer, pledge,
sale, disposition or filing or (ii) enter into any swap or other agreement that transfers,
in whole or in part, any of the economic consequences of ownership of the Stock, whether any
such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock
or such other securities, in cash or otherwise, without the prior written consent of the
Representatives, other than (a) the Shares to be sold hereunder; (b) issuances of shares of
Stock upon the exercise of options, other equity-based compensatory awards, or warrants or
the conversion or redemption of any security disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus;
(c) the issuance of shares of Stock upon the redemption of operating partnership units
disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the
Preliminary Prospectus and the Prospectus in accordance with the Second Amended and Restated
Agreement of Limited Partnership of the Operating Partnership; or (d) the filing by the
Company of any registration statement on Form S-8 or a successor form thereto.
Notwithstanding the foregoing, 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; provided, however, that this proviso will not apply if, as of
the expiration of the 90-day restricted period, (i) the safe harbor provided by Rule 139
under the Securities Act is available in the manner contemplated by Rule 2711(f)(4) of the
National Association of Securities Dealers, Inc and (ii) the Company’s shares of Stock are
“actively traded securities”, as defined in Regulation M, 17 CFR 242.101(c)(1);
provided, further, that in no event will the restricted period extend for
more than 30 days plus 3 business days after the end of the 90-day restricted period.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Use of proceeds.”
(j) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Stock.
(k) Exchange Listing. The Company will use its commercially reasonable best efforts to
list, subject to notice of issuance, the Shares on the NYSE.
(l) Reports. For a period of three years from the date hereof, the Company will
furnish to the Representatives, as soon as they are available, copies of all reports or
other
19
communications (financial or other) furnished to holders of the Shares, and copies of
any reports and financial statements furnished to or filed with the Commission or any
national securities exchange or automatic quotation system; provided the Company
will be deemed to have furnished such reports and financial statements to the
Representatives to the extent they are filed on the Commission’s Electronic Data Gathering,
Analysis, and Retrieval system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to or participate in the planning for use
of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued
by the Company) other than (i) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included
(including through incorporation by reference) in the Preliminary Prospectus or a previously
filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on
Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic
road show), or (iii) any free writing prospectus prepared by such underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in
clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares unless such terms have
previously been included in a free writing prospectus filed with the Commission.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company of its
covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant
to Rule 401(g)(2) under the Securities Act, or pursuant to Section 8A under the Securities
Act shall be pending before or explicitly threatened by the Commission; the Prospectus and
each Issuer Free Writing Prospectus shall have been timely filed with the Commission under
the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all
requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
20
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing
Date or the Additional Closing Date, as the case may be; and the statements of the Company
and its officers made in any certificates delivered pursuant to this Agreement shall be true
and correct on and as of the Closing Date or the Additional Closing Date, as the case may
be.
(c) No Material Adverse Change. No event or condition of a type described in Section
3(u) hereof shall have occurred or shall exist, which event or condition is not described in
the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the
Prospectus (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date,
as the case may be, on the terms and in the manner contemplated by this Agreement, the
Pricing Disclosure Package and the Prospectus.
(d) Officer’s Certificate. The Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate of the chief
financial officer or chief accounting officer of the Company and one additional senior
executive officer of the Company who is satisfactory to the Representatives (i) confirming
that such officers have carefully reviewed the Registration Statement, the Pricing
Disclosure Package and the Prospectus and, to the knowledge of such officers, the
representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii)
confirming that the other representations and warranties of the Company in this Agreement
are true and correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the Closing
Date or the Additional Closing Date, as the case may be, and (iii) to the effect set forth
in paragraphs (a) and (c) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date or the
Additional Closing Date, as the case may be, each of KPMG LLP, PricewaterhouseCoopers LLP
and Xxxx Xxxxx LLP shall have furnished to the Representatives, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives,
containing statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; provided that the letter
delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use
a “cut-off” date no more than three business days prior to such Closing Date or such
Additional Closing Date, as the case may be.
(f) Opinion and Negative Assurance Letter of Counsel for the Company. Xxxxxxx Procter
LLP, counsel for the Company, shall have furnished to the Representatives, at the request of
the Company, their written opinion and negative assurance letter, dated the Closing Date or
the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representatives, substantially in the form set
forth in Annex B hereto.
(g) Opinion and Negative Assurance Letter of Counsel for the Underwriters. The
Representatives shall have received on and as of the Closing Date or the Additional Closing
Date, as the case may be, an opinion and negative assurance letter of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriters, with respect to such matters as the
Representatives may
21
reasonably request, and such counsel shall have received such documents and information
as they may reasonably request to enable them to pass upon such matters.
(h) Opinion of Tax Counsel for the Company. Baker, Donelson, Bearman, Xxxxxxxx &
Xxxxxxxxx, P.C., tax counsel of the Company, shall have furnished to the Representatives, at
the request of the Company, their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, substantially in the form set forth in Annex
C hereto.
(i) Opinion of General Counsel for the Company. Xxxxxxx X. Xxxxxxx, general counsel of
the Company, shall have furnished to the Representatives, at the request of the Company,
their written opinion, dated the Closing Date or the Additional Closing Date, as the case
may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, substantially in the form set forth in Annex D hereto.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and
no injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent
the issuance or sale of the Shares.
(k) Good Standing. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, satisfactory evidence of (i) the
good standing of the Company and its significant subsidiaries listed on Schedule 2 hereto
(as identified by an asterisk (“*”) beside the name thereof) in their respective
jurisdictions of organization1 and (ii) the good standing of the Company and the
Operating Partnership as foreign entities in such other jurisdictions as shown opposite
their name on Schedule 2 hereto, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the NYSE, subject
to official notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form set
forth as Exhibit A hereto, between you and certain shareholders, officers and directors of
the Company (identified on Exhibit B hereto) relating to sales and certain other
dispositions of shares of Stock or certain other securities, delivered to you on or before
the date hereof, shall be full force and effect on the Closing Date or Additional Closing
Date, as the case may be.
| 1 | Note: Significant subsidiaries identified by an asterisk (“*”) are consistent with those identified on Exhibit A to Xxxxxxx Procter’s opinion from January 2009. |
22
(n) Chief Financial Officer Certificate. The Representatives shall have received on
the date hereof and as of the Closing Date or the Additional Closing Date, as the case may
be, a certificate of the Company’s Chief Financial Officer, on behalf of the Company for
itself and as sole member of the general partner of the Operating Partnership, substantially
in the form attached as Annex E hereto.
(o) Additional Documents. On or prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure
Package that has subsequently been amended), or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 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 Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: (i) the concession figures appearing in the
first sentence of the third paragraph under the caption “Underwriting,” (ii) the second and third
sentences of the third paragraph under the caption “Underwriting,” (iii) the seventh, twelfth and
thirteenth paragraphs under the
23
caption “Underwriting” and (iv) the second and third sentences of the fourteenth paragraph
under the caption “Underwriting.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that
the failure to notify the Indemnifying Person shall not relieve it from any liability that it may
have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representatives and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company. 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 (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters on the other, from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriters on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale of the Shares and
the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate offering price of the Shares. The relative fault of the Company, on the one hand, and
the Underwriters on the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by 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.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or, in the case of the Option Shares, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by any of the
NYSE, the Nasdaq Stock Market, the Chicago Board Options Exchange, the Chicago Mercantile Exchange
or the Chicago Board of Trade; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on
25
any exchange or in any over-the-counter market; (iii) a general moratorium on commercial
banking activities shall have been declared by federal or New York State authorities; or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis, either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Shares on such terms. If other persons become
obligated or agree to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date or the Additional Closing Date, as the
case may be, for up to five full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that
effects any such changes. As used in this Agreement, the term “Underwriter” includes, for
all purposes of this Agreement unless the context otherwise requires, any person not listed in
Schedule 1 hereto that, pursuant to this Section 10, purchases Shares that a defaulting Underwriter
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-tenth of the aggregate number
of Shares to be purchased on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-tenth of the aggregate amount of
Shares to be purchased on such date, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement or, with respect to any Additional Closing Date, the
obligation of the Underwriters to purchase Shares on the Additional Closing Date shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set forth in Section 11
hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in
effect.
26
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of
the Company’s counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification of the Shares under the state or foreign
securities or blue sky laws of such jurisdictions as the Representatives may designate and the
preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (v) the cost of preparing stock certificates; (vi) the
costs and charges of any transfer agent and any registrar; (vii) all expenses and application fees
incurred in connection with any filing with, and clearance of the offering by, FINRA; (viii) all
expenses incurred by the Company in connection with any “road show” presentation to potential
investors; and (ix) all expenses and application fees related to the listing of the Shares on the
NYSE.
(b) If (i) this Agreement is terminated pursuant to Section 9(ii), (ii) the Company for any
reason fails to tender the Shares for delivery to the Underwriters or (iii) the Underwriters
decline to purchase the Shares for any reason permitted under this Agreement (other than pursuant
to Section 9(i),(iii) or (iv)), the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy, benefit or claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor or beneficiary merely
by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made
by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
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15. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities Inc. and Deutsche Bank Securities Inc. Except as
otherwise provided herein, any action by the Underwriters hereunder may be taken by X.X. Xxxxxx
Securities Inc. or Deutsche Bank Securities Inc. on behalf of the Underwriters, and any such action
taken by X.X. Xxxxxx Securities Inc. or Deutsche Bank Securities Inc. shall be binding upon the
Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000),
Attention Equity Syndicate Desk or c/o Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (fax: (000) 000-0000), Attention Equity Capital Markets Syndicate, 4th floor. Notices
to the Company shall be given to it at the offices of the Company at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx Xxxxxxx.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing is in accordance with the understanding among the Company, the Operating
Partnership and the several Underwriters, please indicate your acceptance of this Agreement by
signing in the space provided below.
| Very truly yours, MEDICAL PROPERTIES TRUST, INC. |
||||
| By: | /s/ R. Xxxxxx Xxxxxx | |||
| Name: | R. Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| 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 & Chief Financial Officer | |||
| Accepted as of the date first set forth above. X.X. XXXXXX SECURITIES INC. For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Authorized Signatory | ||||
| DEUTSCHE BANK SECURITIES INC. For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Authorized Signatory | ||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Authorized Signatory | ||||
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