COMMON STOCK DELIVERY AGREEMENT
Exhibit 10.2
This agreement (“Agreement”) is being made this 6th day of November, 2006 by and between MPT
Operating Partnership, L.P., a Delaware limited partnership (the “Issuer”), and Medical Properties
Trust, Inc., a Maryland corporation (the “Guarantor”).
Recitals
WHEREAS, the Guarantor is the sole member of the general partner of the Issuer; and
WHEREAS, the Issuer and the Guarantor have entered into a purchase agreement dated November 1,
2006 with UBS Securities LLC and X.X. Xxxxxx Securities Inc. as representatives of the initial
purchasers (the “Initial Purchasers”), providing for the issuance and sale by the Issuer in an
offering under Rule 144A promulgated under the Securities Act of 1933, as amended (the “Act”), of
$125,000,000 principal amount of its 6.125% Senior Exchangeable Senior Notes due 2011 (the
“Securities”), which Securities may be exchangeable into cash and, if applicable, shares of common
stock, par value $0.001 per share, of the Guarantor (the “Common Stock”) under certain
circumstances.
NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants
contained herein, the parties agree as follows:
Agreement
1. If the Issuer is required to deliver Common Stock to the holders of the Securities upon
exchange, redemption or maturity in accordance with the terms of the Securities and the Indenture,
dated as of November 6, 2006, by and among the Issuer, the Guarantor and Wilmington Trust Company,
as trustee (the “Indenture”), related to the Securities, the Guarantor agrees to issue the number
of Common Stock which the Issuer is required to deliver, and the Issuer hereby directs the
Guarantor to deliver such Common Stock to the holders of the Securities on behalf of the Issuer in
accordance with the Indenture.
2. Upon any such issuance of Common Stock, the Issuer shall, in accordance with its First
Amended and Restated Agreement of Limited Partnership (the “Partnership Agreement”) issue to the
Guarantor on a concurrent basis a certain number of “Partnership Units” (as defined in the
Partnership Agreement) equal to the number of Partnership Units the Issuer would issue to the
Guarantor if the Guarantor instead issued the Common Stock to the Issuer.
3. The Issuer hereby agrees to indemnify the Guarantor and each of its directors and officers
(each, an “Indemnified Party”) against, and agrees to hold, save and defend each Indemnified Party,
harmless from, any loss, expense or damage (including without limitation,
reasonable attorneys’ fees and expenses and court costs actually incurred) suffered or
incurred by an Indemnified Party by reason of anything such Indemnified Party may in good faith do
or refrain from doing for or on behalf of the Issuer pursuant to this Agreement; provided, however,
that the Issuer shall not be required to indemnify an Indemnified Party for any loss, expense or
damage that such Indemnified Party may suffer or incur as a result of its willful misconduct or
gross negligence.
4. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT LAWS, RULES OR PRINCIPLES.
(b) No provision of this agreement may be amended, modified, or waived, except in
writing signed by both parties and with the consent of a majority in principal amount of
Securities then outstanding; provided, however, that the unanimous consent of the holders of
all outstanding Securities will be required in order to amend, modify, or waive the
provisions of paragraph 2 hereof or to otherwise adversely affect the right of holders of
Securities to exchange the Securities for Common Stock as provided in the Indenture. Any
consent of the holders of the Securities shall be obtained in accordance with the applicable
provisions of the Indenture.
(c) In the event that any claim of inconsistency between this Agreement and the terms
of the Indenture arise, as they may from time to time be amended, the terms of the Indenture
shall control.
(d) If any provision of this Agreement shall be held illegal, invalid, or unenforceable
by any court, this Agreement shall be construed and enforced as if such provision had not
been contained herein and shall be deemed an Agreement among us to the full extent permitted
by applicable law.
(e) The terms and provisions of this Agreement are intended solely for the benefit of
each party hereto and their respective successors or permitted assigns, and it is not the
intention of the parties to confer third-party beneficiary rights to any other person,
except that the holders of the Securities shall be deemed third-party beneficiaries of this
Agreement and shall be entitled to enforce the provisions of this Agreement as if they were
parties hereto.
(f) This Agreement may not be assigned by either party without prior written consent of
both parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
officers as of the day and year above written.
| MPT OPERATING PARTNERSHIP, L.P. | ||||
| By: | Medical Properties Trust, LLC as General Partner |
|||
| By: | Medical Properties Trust, Inc., as Sole Member | |||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | President and Chief Executive Officer | |||
| MEDICAL PROPERTIES TRUST, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | President and Chief Executive Officer | |||
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