Exhibit 1.1
MEDICAL PROPERTIES TRUST, INC.
12,066,823 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
July 7, 2005
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
As Representative of the several Underwriters listed on Schedule II hereto
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Medical Properties Trust, Inc., a Maryland corporation (the
"Company"), MPT Operating Partnership, L.P., a Delaware limited partnership (the
"Operating Partnership"), and certain stockholders of the Company listed on
Schedule I hereto (the "Selling Stockholders"), each confirms its or his
agreement with each of the Underwriters listed on Schedule II hereto
(collectively, the "Underwriters"), for whom Friedman, Billings, Xxxxxx & Co.,
Inc. ("FBR") is acting as representative (in such capacity, the
"Representative"), with respect to (i) the sale by the Company and the Selling
Stockholders of 12,066,823 shares (the "Initial Shares") of common stock, par
value $0.001 per share, of the Company ("Common Stock") in the respective
numbers of shares set forth opposite the names of the Company and each such
Selling Stockholder in Schedule I hereto, and the purchase by the Underwriters,
acting severally and not jointly, of the respective number of Initial Shares set
forth opposite the names of the Underwriters in Schedule II hereto, and (ii) the
grant of the option described in Section 1(b) hereof to purchase all or any part
of 1,810,023 additional shares of Common Stock to cover over-allotments (the
"Option Shares"), if any, from the Company to the Underwriters, acting severally
and not jointly, in amounts proportionate to the respective numbers of Initial
Shares set forth opposite the names of the Underwriters on Schedule II hereto.
The Initial Shares to be purchased by the Underwriters and all or any part of
the Option Shares are hereinafter called, collectively, the "Shares."
The Company understands that the Underwriters propose to make a
public offering of the Shares as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the Commission"), a registration statement on Form S-11 (No. 333-119957) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including
financial statements, exhibits, schedules and other information deemed to be a
part of the registration statement at the time it became effective pursuant to
Rule 430A(b) of the Securities Act Regulations) is hereinafter called the
"Registration Statement," except that, if the Company files a post-effective
amendment to such registration statement which becomes effective prior to the
First Closing Date (as defined below), "Registration Statement" shall refer to
such registration statement as so amended. Any registration statement filed by
the Company pursuant to Rule 462(b) of the Securities Act Regulations is
hereinafter called the "Rule 462(b) Registration Statement" and from and after
the date and time of filing the Rule 462(b) Registration Statement, the term
Registration Statement shall include the Rule 462(b) Registration Statement.
Each prospectus included in the Registration Statement, or amendments thereof or
supplements thereto, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(a) of the Securities Act Regulations is
hereinafter called the "Preliminary Prospectus." The term "Prospectus" means the
final prospectus, as first filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations, and any amendments thereof or supplements
thereto. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus.
The Operating Partnership or a Subsidiary (as defined below) owns a
portfolio of nine operating facilities and has three facilities that are under
development (the "Current Properties"). The Operating Partnership or a
Subsidiary has entered into agreements (the "Acquisition Agreements") as
described in the Registration Statement to acquire or develop five additional
properties (the "Pending Acquisition Properties").
Each Selling Stockholder has executed and delivered a (i) Custody
Agreement signed by such Selling Stockholder and American Stock Transfer & Trust
Co., as custodian (the "Custodian"), in the form attached hereto as Exhibit A,
pursuant to which each Selling Stockholder party thereto has placed the Initial
Shares to be sold by it pursuant to this Agreement in custody (the "Custody
Agreement") and a (ii) Power of Attorney, in the form attached hereto as Exhibit
B (the "Power of Attorney"), appointing certain individuals named therein as
such Selling Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact," and
collectively, the "Committee") with the authority to execute and deliver this
Agreement on behalf of such Selling Stockholder and to take certain other
actions with respect thereto and to the extent set forth therein relating to the
transactions contemplated by this Agreement and by the Prospectus.
The Company, each of the Selling Stockholders and the Underwriters
agree as follows:
1. Sale and Purchase:
(a) Initial Shares. Upon the basis of the representations and warranties
and other terms and conditions herein set forth at a purchase price per share of
$9.765, the Company agrees to sell to the Underwriters the number of Initial
Shares set forth in Schedule I opposite its name, and each Selling Stockholder
agrees to sell to the Underwriters the number of Initial Shares set forth in
Schedule I opposite such Selling Stockholder's name, and each Underwriter
agrees, severally and not jointly, to purchase from the Company and the Selling
Stockholders the number of Initial Shares set forth in Schedule II opposite such
Underwriter's name, plus any
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additional number of Initial Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 8 hereof, subject in each
case, to such adjustments among the Underwriters as the Representative, in its
sole discretion, shall make to eliminate any sales or purchases of fractional
shares.
(b) Option Shares. In addition, upon the basis of the representations
and warranties and other terms and conditions herein set forth, at the purchase
price per share set forth in Section 1(a) hereof, the Company hereby grants an
option to the Underwriters, acting severally and not jointly, to purchase from
the Company all or any part of the Option Shares, plus any additional number of
Option Shares which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 8 hereof. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Shares upon notice
by the Representative to the Company setting forth the number of Option Shares
as to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Shares. Any such time and date
of delivery (an "Option Closing Date") shall be determined by the
Representative, and may be the First Closing Date (as hereinafter defined), but
otherwise shall not be later than five full business days after the exercise of
such option, nor in any event prior to the First Closing Date, as hereinafter
defined. If the option is exercised as to all or any portion of the Option
Shares, the Company will sell the total number of Option Shares then being
purchased and each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares then being
purchased which the number of Initial Shares set forth in Schedule II opposite
the name of such Underwriter bears to the total number of Initial Shares,
subject in each case to such adjustments among the Underwriters as the
Representative, in its sole discretion, shall make to eliminate any sales or
purchases of fractional shares.
2. Payment and Delivery:
(a) Initial Shares. The Shares to be purchased by each Underwriter
hereunder shall be delivered by or on behalf of the Company and the Selling
Stockholders to the Representative, in definitive form, and in such authorized
denominations and registered in such names as the Representative may request
upon at least forty-eight hours prior notice to the Company and the Selling
Stockholders, including, at the option of the Representative, through the
facilities of The Depository Trust Company ("DTC") for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account
specified to the Representative by the Company and each of the Selling
Stockholders, upon at least forty-eight hours prior notice. The Company will
cause any certificates representing the Initial Shares to be made available for
checking and packaging at least twenty-four hours prior to the First Closing
Date with respect thereto at the office of Friedman, Billings, Xxxxxx & Co.,
Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or at the office of DTC
or its designated custodian, as the case may be (the "Designated Office"). The
time and date of such delivery and payment shall be 9:30 a.m., New York City
time, on the third (fourth, if pricing occurs after 4:30 p.m., New York City
time) business day after the date hereof (unless another time and date shall be
agreed to by the Representative and the Company). The time and date at which
such payment and delivery are actually made is hereinafter called the "First
Closing Date."
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(b) Option Shares. Any Option Shares to be purchased by each Underwriter
hereunder shall be delivered by or on behalf of the Company to the
Representative, in definitive form, and in such authorized denominations and
registered in such names as the Representative may request upon at least
twenty-four hours prior notice to the Company, including, at the option of the
Representative, through the facilities of DTC for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account
specified to the Representative by the Company upon at least twenty-four hours
prior notice. The Company will cause any certificates representing the Option
Shares to be made available for checking and packaging at least twenty-four
hours prior to an Option Closing Date with respect thereto at the Designated
Office. The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on the date specified by the Representative in the notice given
by the Representative to the Company of the Underwriters' election to purchase
such Option Shares or on such other time and date as the Company and the
Representative may agree upon in writing.
Each of the Company and the Selling Stockholders acknowledges and
agrees that the Underwriters are acting solely in the capacity of an arm's
length contractual counterparty to the Company and the Selling Stockholders 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, the Selling Stockholders or any other
person. Additionally, neither the Representative nor any other Underwriter is
advising the Company, the Selling Stockholders or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction.
The Company and the Selling Stockholders shall consult with their own advisors
concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no responsibility or liability to the Company or
the Selling Stockholders 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 or the Selling Stockholders.
3. Representations and Warranties:
The Company and the Operating Partnership represent and warrant to each
Underwriter that:
(a) the authorized shares of capital stock of the Company conform in all
material respects to the description thereof contained in the Prospectus; the
Company has an authorized, issued and outstanding capitalization as set forth in
the Prospectus under the caption "Capitalization"; at the First Closing Date,
37,635,862 shares of Common Stock will be issued and outstanding and no other
shares of preferred stock or any other class of common stock will be issued and
outstanding; the outstanding shares of Common Stock of the Company and the
outstanding capital stock, limited liability company membership interests and
units of limited partnership interest of each subsidiary of the Company, each of
which is named in Exhibit 21.1 to the Registration Statement (each, including
the Operating Partnership, except where noted, a "Subsidiary" and, collectively,
"Subsidiaries") including shares of Common Stock owned by Selling Stockholders
have been duly and validly authorized and issued and are fully paid and
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nonassessable, have been issued in compliance with federal and state securities
laws, and, except as disclosed in the Prospectus, all of the outstanding capital
stock, units of limited partnership interest and limited liability company
membership interests of the Subsidiaries are directly or indirectly owned of
record and beneficially by the Company; except as disclosed in the Prospectus,
there are no outstanding (i) securities or obligations of the Company or any of
the Subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such Subsidiary, (ii) warrants, rights or options to subscribe
for or purchase from the Company or any such Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or any such Subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligation, or any
such warrants, rights or options;
(b) 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 all requisite
corporate power and authority to own, lease and operate its properties, and
conduct its business as described in the Registration Statement and the
Prospectus, and is duly qualified as a foreign corporation to transact business
or licensed and is in good standing in each jurisdiction in which the nature or
conduct of its business requires such qualification or license and in which the
failure, individually or in the aggregate, to be so qualified or licensed (i)
would reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any transactions
contemplated hereby or (ii) would reasonably be expected to have a material
adverse effect on, or result in a material adverse change in, the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus (any such effect or change described in clause
(ii) hereof is hereinafter called, as the context so requires, a "Material
Adverse Effect" or a "Material Adverse Change"); except as disclosed in the
Prospectus, all of the issued and outstanding shares of beneficial interest,
capital stock, limited liability company membership interests or units of
limited partnership interests of each Subsidiary is owned by the Company
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim; except as disclosed in the
Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly,
from paying dividends to the Company, or from making any other distribution with
respect to such Subsidiary's capital stock or from repaying to the Company or
any other Subsidiary any amounts which may from time to time become due under
any loans or advances to such Subsidiary from the Company or such other
Subsidiary, or from transferring any such Subsidiary's property or assets to the
Company or to any other Subsidiary; other than as disclosed in the Registration
Statement and the Prospectus and the next paragraph, the Company does not own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association;
(c) upon completion of the offering of the Shares (i) the Company will
be a holder of units of limited partnership interest in the Operating
Partnership (the "Units") representing an approximate 99% interest in the
Operating Partnership, (ii) Medical Properties Trust, LLC (the "General
Partner") will be the holder of Units representing an approximate 1% interest in
the Operating Partnership, as its sole general partner, and (iii) the Company
will own a 100% membership interest in the General Partner; the Subsidiaries
(all of which are named in
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Exhibit 21.1 to the Registration Statement) have been duly incorporated, formed
or organized, as the case may be, and are validly existing as a corporation,
limited liability company, general partnership or limited partnership, as the
case may be, in good standing under the laws of their respective jurisdictions
of incorporation, formation or organization, as applicable, with all requisite
power and authority to own, lease and operate their respective properties and to
conduct their respective businesses as described in the Registration Statement
and the Prospectus; each Subsidiary is duly qualified to transact business or
licensed as a foreign corporation, foreign limited partnership or foreign
limited liability company, as applicable and is in good standing in each
jurisdiction in which the conduct or nature of their business requires such
qualification or license and in which the failure to be so qualified or
licensed, individually or in the aggregate, would have a Material Adverse
Effect;
(d) the First Amended and Restated Agreement of Limited Partnership of
the Operating Partnership, as further amended and/or restated (the "Partnership
Agreement"), has been duly and validly authorized, executed and delivered by or
on behalf of the partners of the Operating Partnership and 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;
(e) the Company has delivered to the Representative copies of the
Registration Statement (with exhibits) and the Preliminary Prospectus, as
amended or supplemented, in such quantities and at such places as the
Representative have reasonably requested for each of the Underwriters;
(f) the Company has not distributed and will not distribute, prior to
the later of the last Option Closing Date or the completion of the Underwriters'
distribution of the Shares, any offering material in connection with the
offering and sale of the Shares other than a Preliminary Prospectus, the
Prospectus and the Registration Statement;
(g) the Company and the Subsidiaries are in compliance with all
applicable laws, rules, regulations, orders, decrees and judgments, including
those relating to transactions with affiliates except where the failure to be in
compliance would not reasonably be expected to have a Material Adverse Effect;
(h) the Company is not in violation of its Second Articles of Amendment
and Restatement, as amended or restated, (the "Articles of Amendment") or
Bylaws; the Operating Partnership is not in violation of its Certificate of
Limited Partnership or the Partnership Agreement, and no Subsidiary is in
violation of its applicable organizational documents (including, without
limitation partnership and limited liability company agreements); neither the
Company nor any Subsidiary is in breach of or default in (nor to the knowledge
of the Company or any Subsidiary has any event occurred which with notice, lapse
of time, or both would constitute a breach of, or default in) the performance or
observance by the Company or any Subsidiary of any obligation, agreement,
contract, franchise, covenant or condition contained in any license, indenture,
mortgage, deed of trust, loan or credit agreement, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which any of
them or their respective properties is bound except for such breaches or
defaults that,
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individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect;
(i) the execution, delivery and performance of this Agreement and the
Acquisition Agreements and the issuance, sale and delivery by the Company of the
Shares and the consummation of the transactions contemplated herein and therein
will not (A) conflict with, or result in any breach or constitute a default (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach or default) (i) by the Company of any provision of its Articles of
Amendment or Bylaws, by the Operating Partnership of any provision under its
Certificate of Limited Partnership or Partnership Agreement, by any Subsidiary
(excluding the Operating Partnership) of any provision of its applicable
organizational documents, or (ii) by the Company or any Subsidiary of any
provision of any obligation, agreement, contract, franchise, license, indenture,
mortgage, deed of trust, loan or credit agreement, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which any of
them or their respective properties may be bound or affected, or (iii) by the
Company or any Subsidiary under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or
any Subsidiary except in the case of clauses (A)(ii) and (A)(iii) above, for
such conflicts, breaches or defaults that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect; or (B)
except as disclosed in the Prospectus, result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or asset of the Company
or any Subsidiary;
(j) the Company or a Subsidiary, as applicable, has the full legal
right, corporate power and authority to enter into this Agreement and the
Acquisition Agreements and to consummate the transactions contemplated herein
and therein; the Company has the corporate power to issue, sell and deliver the
Shares as provided herein; this Agreement and each of the Acquisition Agreements
has been duly authorized, executed and delivered by the Company and each is a
legal, valid and binding agreement of the Company enforceable in accordance with
its terms except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general equitable principles and except as rights to indemnity
and contribution thereunder may be limited by applicable law or policies
underlying such law;
(k) the Operating Partnership or a Subsidiary, as applicable, has the
full legal right, power and authority to enter into this Agreement and the
Acquisition Agreements and to consummate the transactions contemplated herein
and therein; this Agreement and each of the Acquisition Agreements has been duly
authorized, executed and delivered by the Operating Partnership or a Subsidiary,
as applicable, and each constitutes the valid and binding agreement of the
Operating Partnership or a Subsidiary, as applicable, enforceable against the
Operating Partnership or a Subsidiary, as applicable, in accordance with its
terms except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditor's rights
generally, and by general equitable principles and except as rights to indemnity
and contribution thereunder may be limited by applicable law or policies
underlying such law;
(l) no approval, authorization, consent or order of, or registration or
filing with any federal, state or local governmental or regulatory commission,
board, body, authority or agency is required for the Company's, Operating
Partnership's or a Subsidiary's, as applicable,
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execution, delivery and performance of this Agreement and the Acquisition
Agreements and their consummation of the transactions contemplated herein or
therein, including the sale and delivery of the Shares, other than (A) such as
have been obtained, or will have been obtained before the First Closing Date or
the applicable Option Closing Date, as the case may be, under the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (B)
such approvals as have been obtained or will have been obtained in connection
with the approval of the listing of the Shares on the New York Stock Exchange;
(C) any necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the Underwriters,
the absence of which would not reasonably be expected to have a Material Adverse
Effect; and (D) with respect to the Acquisition Agreements, such as have been
obtained, or will have been obtained either before or after the applicable
closing dates under the Acquisition Agreements;
(m) each of the Company and the Subsidiaries and to the knowledge of the
Company, each tenant or proposed tenant of the Current Facilities and the
Pending Acquisition Facilities 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 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;
except as disclosed in the Prospectus, neither the Company nor any of the
Subsidiaries and to the best knowledge of the Company, each tenant or proposed
tenant of the Current Facilities and the Pending Acquisition Facilities is
required by any applicable law to obtain accreditation or certification from any
governmental agency or authority in order to conduct the business and own the
properties and other assets which it currently provides or owns or which it
proposes to provide or own as described in the Prospectus, except such
accreditations and certifications described in the Prospectus, all of which have
been obtained or, with respect to the Pending Acquisition Properties, will have
been obtained either before or after the applicable closing dates under the
Acquisition Agreements; neither the Company nor any of the Subsidiaries and to
the best knowledge of the Company, each tenant or proposed tenant of the
Company's facilities and the Pending Acquisition Facilities is in violation of,
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;
(n) each of the Registration Statement and any Rule 462(b) Registration
Statement has been declared effective under the Securities Act by the Commission
and no stop order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the Securities Act
and no proceedings for that purpose have been instituted or are pending or, to
the best knowledge of the Company and the Operating Partnership, are
contemplated or threatened by the Commission, and the Company has complied to
the Commission's satisfaction with any request on the part of the Commission for
additional or supplemental information;
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(o) the Preliminary Prospectus and the Registration Statement comply,
and the Prospectus and any further amendments or supplements thereto will, when
they have become effective or are filed with the Commission, as the case may be,
comply, in all material respects with the requirements of the Securities Act and
the Securities Act Regulations; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading; and the
Preliminary Prospectus does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date and on the First
Closing Date and on each Option Closing Date (if any), contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no warranty or representation with respect to any
statement contained in the Registration Statement, the Preliminary Prospectus or
the Prospectus, or any amendments or supplements thereto, in reliance upon and
in conformity with the information furnished in writing by or on behalf of the
Underwriters through the Representative to the Company or any Selling
Stockholder expressly for use in the Registration Statement or the Prospectus,
or any amendments or supplements thereto (that information being limited to that
described in the penultimate sentence of the first paragraph of Section 9(c)
hereof);
(p) the Preliminary Prospectus was, and the Prospectus delivered to the
Underwriters for use in connection with this offering will be, identical to the
versions of the Preliminary Prospectus and Prospectus transmitted to the
Commission for filing via the Electronic Data Gathering Analysis and Retrieval
System ("XXXXX"), except to the extent permitted by Regulation S-T;
(q) except as described in the Prospectus, there are no actions, suits
or proceedings pending or, to the knowledge of the Company and the Operating
Partnership, threatened, and the Company has not received notice of any pending
investigation or inquiry (i) against or affecting the Company or any of the
Subsidiaries, or (ii) which has the subject thereof any of the respective
officers and directors of the Company or any officers, directors, managers or
partners of its Subsidiaries, or to which the properties, assets or rights of
any such entity are subject, at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency, that, if determined adversely, would
reasonably be expected to result in a judgment, decree, award or order having a
Material Adverse Effect or would reasonably be expected to have a Material
Adverse Effect;
(r) the consolidated financial statements of the Company and the
Subsidiaries, including the notes thereto, included in the Registration
Statement and the Prospectus present fairly the consolidated financial position
of the entities to which such financial statements relate (the "Covered
Entities") as of the dates indicated and the consolidated results of operations
and changes in financial position and cash flows of the Covered Entities for the
periods specified; the supporting schedules included in the Registration
Statement fairly present the information required to be stated therein; such
financial statements have been prepared in conformity with generally accepted
accounting principles as applied in the United States ("GAAP") and on a
consistent basis during the periods involved (except as may be expressly stated
in the related
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notes thereto) and in accordance with Regulation S-X promulgated by the
Commission; the financial data set forth in the Registration Statement and in
the Prospectus under the captions "Summary - Summary Financial Information,"
"Selected Financial Information," and "Capitalization" fairly present the
information shown therein and have been compiled on a basis consistent with the
financial statements included in the Registration Statement and the Prospectus;
no other financial statements or supporting schedules are required to be
included in the Registration Statement; no other pro forma financial information
is required to be included in the Registration Statement; the unaudited pro
forma financial information (including the related notes) included in the
Prospectus and any Preliminary Prospectus complies as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the Securities Act Regulations, and management of the Company believes that the
assumptions underlying the pro forma adjustments are reasonable; such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of the information and such information fairly presents with respect
to the Company and the Subsidiaries, the financial position, results of
operations and other information purported to be shown therein at the respective
dates and for the respective periods specified;
(s) (i) KPMG LLP, who have audited certain financial statements of the
Company and its consolidated subsidiaries and expressed their opinions in
reports with respect to the consolidated financial statements of the Company and
the Subsidiaries filed with the Commission as part of the Registration Statement
and Prospectus are, and were during the periods covered by its reports,
independent public accountants with respect to the Company as required by the
Securities Act and the Securities Act Regulations and the Exchange Act and the
rules and regulations thereunder (the "Exchange Act Regulations"); and (ii) to
the Company's and the Operating Partnership's knowledge, KPMG LLP is not in
violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of
2002, as amended, and the rules and regulations promulgated by the Commission
thereunder (the "Xxxxxxxx-Xxxxx Act");
(t) subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, and except as may be otherwise
stated in the Registration Statement or Prospectus, as of the date hereof, there
has not been (A) any Material Adverse Change or, to the knowledge of the
Company, any development that could reasonably be expected to result in a
Material Adverse Change, whether or not arising in the ordinary course of
business, (B) any transaction that is material to the Company and the
Subsidiaries taken as a whole, contemplated or entered into by the Company or
any of the Subsidiaries or any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business, (C) any
obligation, contingent or otherwise, directly or indirectly incurred by the
Company or any Subsidiary that would reasonably be expected to result in a
Material Adverse Effect or (D) any dividend or distribution of any kind
declared, paid or made by the Company or, except for dividends paid to the
Company or other Subsidiaries, any of its Subsidiaries on any class of its
capital stock or repurchase or redemption by the Company or any of its
Subsidiaries of any class of capital stock;
(u) the Shares conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus;
10
(v) there are no persons with registration or other similar rights to
have any equity or debt securities, including securities that are convertible
into or exchangeable for equity securities, registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act, (i) except for certain of the Selling Stockholders, to the
extent of the equity securities to be offered and sold by such Selling
Stockholders as contemplated by this Agreement, (ii) except for those
registration or similar rights that have been waived with respect to the
offering contemplated by this Agreement, and (iii) except pursuant to or arising
out of that certain Registration Rights Agreement dated April 7, 2004, all of
which registration or similar rights described in clauses (i), (ii) and (iii)
are fairly summarized in the Prospectus; no person has a right of participation
or first refusal with respect to the sale of the Shares by the Company;
(w) the issuance and sale of the Shares by the Company to the
Underwriters hereunder have been duly authorized by the Company, and, when
issued and duly delivered against payment therefor as contemplated by this
Agreement, will be validly issued, fully paid and nonassessable, free and clear
of any pledge, lien, encumbrance, security interest or other claim created by or
known to the Company, and the issuance and sale of the Shares by the Company is
not subject to preemptive or other similar rights arising by operation of law,
under the organizational documents of the Company or under any agreement to
which the Company or any Subsidiary is a party or otherwise; except as
contemplated herein or as otherwise disclosed in the Registration Statement or
the Prospectus, there are no contracts, agreements or understandings between the
Company and any person or entity granting such person or entity the right to
require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company;
(x) the Shares have been registered pursuant to Section 12(b) of the
Exchange Act and the Shares have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance;
(y) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(z) neither the Company nor any of its affiliates is (i) required to
register as a "broker" or "dealer" in accordance with the provisions of the
Exchange Act or the Exchange Act Regulations, (ii) an affiliate of a broker or
dealer or (iii) a person associated with a member firm of the NASD (within the
meaning of Article I of the Bylaws of the NASD);
(aa) the Company has not relied upon the Representative or legal counsel
for the Underwriters for any legal, tax or accounting advice in connection with
the offering and sale of the Shares;
(bb) the form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the Articles of Amendment and Bylaws of the Company
and the requirements of the New York Stock Exchange;
11
(cc) 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, security interests, pledges,
charges, encumbrances, encroachments, restrictions, mortgages and other defects,
except such as are disclosed in 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 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, which policies include only
commercially reasonable exceptions, and with coverages in amounts at least equal
to amounts that are generally deemed in the Company's industry to be
commercially reasonable in the markets where the Company's properties are
located, 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;
(dd) to the knowledge of the Company, all real property owned or leased
by the Company or any Subsidiary, including the Current Facilities, whether
owned in fee simple or through a joint venture or other partnership, (each, a
"Property" and collectively "Properties"), is free of any material structural
defects and all building systems contained therein are in good working order in
all material respects, subject to ordinary wear and tear or, in each instance,
the Company or any Subsidiary, as the case may be, has created or caused to be
created an adequate reserve or capital budget to effect reasonably required
repairs, maintenance and capital expenditures; water, storm water, sanitary
sewer, electricity and telephone service are all available at the property lines
of such property over duly dedicated streets or perpetual easements of record
benefiting such property; the Company has not received any notice of any pending
or threatened special assessment, tax reduction proceeding or other action that
could reasonably be expected to have a Material Adverse Effect;
(ee) each of the properties listed in 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;
12
(ff) the descriptions in the Registration Statement and the Prospectus of
legal or governmental proceedings, contracts, leases and other legal documents
therein described present fairly in all material respects the information
required to be disclosed, and there are no legal or governmental proceedings,
contracts, leases, or other documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required; all
agreements between the Company or any of the Subsidiaries and third parties
expressly referenced in the Registration Statement and the Prospectus are legal,
valid and binding obligations of the Company or one or more of the Subsidiaries,
enforceable in accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by general
equitable principles;
(gg) 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 or the Prospectus and are not so described;
(hh) the Company and each Subsidiary owns or possesses, adequate and
sufficient licenses or other rights to use all patents, trademarks, service
marks, trade names, copyrights, domain names, software and design licenses,
approvals, trade secrets, manufacturing processes, other intangible property
rights and know-how (collectively "Intellectual Property Rights") necessary to
entitle the Company and each Subsidiary to conduct its business as described in
the Prospectus; neither the Company nor any Subsidiary has received notice of
infringement of or conflict with (and the Company knows of no such infringement
of or conflict with) asserted rights of others with respect to any Intellectual
Property Rights which would reasonably be expected to have a Material Adverse
Effect; neither the Company nor any Subsidiary is a party to or bound by any
options, licenses or agreements with respect to the Intellectual Property Rights
of any other person or entity that are required to be set forth in the
Prospectus and are not described as required in all material respects;
(ii) 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
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences; (v) management is made aware of all material transactions
concerning the Company or its properties; and (vi) the Company qualifies as a
REIT under the requirements of the Code;
(jj) each of the Company, the General Partner, and the Subsidiaries has
filed on a timely basis (including in accordance with any applicable extensions)
all necessary federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof or
13
have properly requested extensions thereof, and have paid all taxes shown as due
thereon, and if due and payable, any related or similar assessment, fine or
penalty levied against the Company, the General Partner, or any of the
Subsidiaries; no tax deficiency has been asserted against any such entity, nor
does the Company or any of the Subsidiaries know of any tax deficiency which is
likely to be asserted against any such entity; all tax liabilities are
adequately provided for on the respective books of such entities;
(kk) each of the Company and the Subsidiaries maintains insurance, issued
by insurers of recognized financial responsibility, of the types and with
policies in such amounts and with such deductibles and covering such risks as
are generally deemed adequate for their respective businesses and properties,
and to the knowledge of the Company, consistent with insurance coverage
maintained by similar companies in similar businesses, which insurance is in
full force and effect; the Company has no reason to believe that it or any
Subsidiary will not be able (i) to renew its existing insurance coverage as and
when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now
conducted; neither of the Company nor any Subsidiary has been denied any
insurance coverage which it has sought or for which it has applied;
(ll) except as otherwise disclosed in the Prospectus, (i) none of the
Company or any of the Subsidiaries nor, to the knowledge of the Company, any
other owners or tenants of the Current Properties or the Pending Acquisition
Properties has used, handled, stored, treated, transported, manufactured,
spilled, leaked, or discharged, dumped, transferred or otherwise disposed of or
dealt with, Hazardous Materials (as defined below) on, in, under or affecting
any real property currently leased or owned by the Company or any of the
Subsidiaries (collectively, the "Real Property"), except in connection with the
ordinary use of residential, retail, commercial or healthcare properties owned
by the Subsidiaries; (ii) the Company and the Subsidiaries do not intend to use
the Real Property or any subsequently acquired properties for the purpose of
using, handling, storing, treating, transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring or otherwise disposing of or dealing
with Hazardous Materials other than in connection with the ordinary use of
residential, retail, commercial or healthcare properties owned by the
Subsidiaries; (iii) none of the Company or the Subsidiaries has received any
notice of, or has any knowledge of, any occurrence or circumstance which, with
notice or passage of time or both, would give rise to a claim under or pursuant
to any federal, state or local environmental statute or regulation or under
common law, pertaining to Hazardous Materials on or originating from any of the
Real Property, including without limitation a claim under or pursuant to any
Environmental Statute (as hereinafter defined); (v) the Real Property is not
included or, to the knowledge of the Company, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or, to the Operating
Partnership's and the Company's knowledge, proposed for inclusion on any similar
list or inventory issued pursuant to any other Environmental Statute or issued
by any other Governmental Authority (as defined below); in the operation of the
Company's businesses, the Company obtains Phase I Environmental Audits with
respect to Real Properties as described in the Prospectus;
As used herein, "Hazardous Material" shall include, without limitation,
any flammable explosive, radioactive material, hazardous substance, hazardous
material, hazardous waste, toxic substance, asbestos or related material, as
defined by any federal, state or local environmental
14
law, ordinance, rule or regulation including without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections
11001-11050, the Toxic Substances Control Act, 15 U.S.C. Sections 2601-2671, the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y,
the Clean Air Act, 42 U.S.C. Sections 7401-7642, the Clean Water Act (Federal
Water Pollution Control Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking
Water Act, 42 U.S.C. Sections 300f-300j-26, and the Occupational Safety and
Health Act, 29 U.S.C. Sections 651-678, as any of the above statutes may be
amended from time to time, and in the regulations promulgated pursuant to each
of the foregoing (individually, an "Environmental Statute") or by any federal,
state or local governmental authority having or claiming jurisdiction over the
properties and assets described in the Prospectus (a "Governmental Authority");
(mm) to the knowledge of the Company, there are no costs or liabilities
associated with any Environmental Statute (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with any Environmental Statute 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;
(nn) to the knowledge of the Company, none of the entities which prepared
appraisals of the Real Property, nor the entities which prepared Phase I or
other environmental assessments with respect to the Real Property, 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;
(oo) neither the Company nor any Subsidiary is in violation of or has
received notice of any violation with respect to any federal or state law, rule
or regulation, including without limitation any federal or state law relating to
discrimination in the hiring, termination, promotion, terms or conditions of
employment or pay of employees, nor any applicable federal or state wages and
hours law, the violation of, individually or in the aggregate would reasonably
be expected to have a Material Adverse Effect;
(pp) the Company, the Subsidiaries and their "ERISA Affiliates" (as
defined below) and any "employee benefit plan" (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA")) established or
maintained by the Company, the Subsidiaries or their ERISA Affiliates or to
which the Company, the Subsidiaries or their ERISA Affiliates contribute or are
required to contribute are in compliance in all material respects with ERISA;
"ERISA Affiliate" means any trade or business, whether or not incorporated,
which with the Company or a Subsidiary is treated as a single employer under
Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder and the
corresponding provisions of state income tax codes (the "Code"); no such
employee benefit plan is subject to Section 412 of the Code, Section 302 of
ERISA or Title IV of ERISA; all
15
contributions required to have been made under each such employee benefit plan
have been made on a timely basis; there has been no "prohibited transaction" (as
defined in Section 4975 of the Code or Section 406 or 407 of ERISA) for which
the Company, the Subsidiaries or their ERISA Affiliates have any liability; each
such employee benefit plan that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, whether by action or
failure to act, which would reasonably be expected to cause the loss of such
qualification;
(qq) neither the Company nor any of the Subsidiaries nor any officer
purporting to act on behalf of the Company or any of the Subsidiaries nor, to
the Company's knowledge, any director, manager, employee or other representative
purporting to act on behalf of the Company or any of the Subsidiaries has at any
time (i) made any contributions to any candidate for political office, or failed
to disclose fully any such contributions, in violation of law, (ii) made any
payment to any state, federal or foreign governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or allowed by applicable law or (iii) engaged in any
transactions, maintained any bank account or used any corporate funds except for
transactions, bank accounts and funds which have been and are reflected in the
normally maintained books and records of the Company and the Subsidiaries;
(rr) there are no material outstanding loans or advances or material
guarantees of indebtedness by the Company or any of the Subsidiaries to or for
the benefit of any of the officers, directors, managers or directors of the
Company or any of the Subsidiaries or any of the members of the families of any
of them;
(ss) there is and has been no failure on the part of the Company or any
of the Company's directors or officers, in their capacities as such, to comply
with any provision of the Xxxxxxxx-Xxxxx Act of 2002, as amended, including
Section 402 related to loans and Sections 302 and 906 related to certifications
to the extent such provisions are applicable to the Company;
(tt) neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such Persons of the
FCPA, including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
Subsidiaries, and to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith. "FCPA" means Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder;
(uu) 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
16
the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Money
Laundering Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened;
(vv) neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, 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.
Treasury Department ("OFAC"); and the Company will not directly or indirectly
use the proceeds of the offering, 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;
(ww) except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and (ii) does
not intend to use any of the proceeds from the sale of the Shares hereunder to
repay any outstanding debt owed to any affiliate of any Underwriter;
(xx) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company or the Operating Partnership, any officer, director,
employee or agent of the Company or any of the Subsidiaries, has made any
payment of funds of the Company or of any Subsidiary or received or retained any
funds in violation of any law, rule or regulation or of a character required to
be disclosed in the Prospectus and which has not been properly described
therein;
(yy) all securities issued by the Company, any of the Subsidiaries or any
trusts established by the Company or any Subsidiary, have been issued and sold
in compliance with (i) all applicable federal and state securities laws, (ii)
the laws of the applicable jurisdiction of incorporation of the issuing entity
and, (iii) to the extent applicable to the issuing entity, the requirements of
the New York Stock Exchange;
(zz) the Company has fairly summarized in the Prospectus all material
options and rights of first refusal to purchase all or part of any Real Property
or any interest therein; to the knowledge of the Company, each of the Real
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 Real Properties and will not result in a forfeiture or
reversion of title; to the knowledge of the Company, 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; all liens, charges,
encumbrances, claims, or restrictions on or affecting the properties and assets
(including the Properties) of the Operating Partnership or any of the
Subsidiaries that are required to be described in the Prospectus (or, the most
recent
17
Preliminary Prospectus) are disclosed therein; to the knowledge of the Company,
no lessee of any portion of any of the Properties is in default under any of the
leases governing such properties and there is no event which, but for the
passage of time or the giving of notice or both would constitute a default under
any of such leases, except such defaults that would not reasonably be expected
to have a Material Adverse Effect; and except as disclosed in the Registration
Statement and the Prospectus, no tenant under any lease pursuant to which any of
the Subsidiaries leases the Real 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;
(aaa) the mortgages and deeds of trust encumbering the real property owned
by the Company and its Subsidiaries are not convertible nor will the Company or
the Partnership 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;
(bbb) in connection with the offering of Common Stock, the Company has not
offered and will not offer its Common Stock or any other securities convertible
into or exchangeable or exercisable for Common Stock in a manner in violation of
the Securities Act; the Company has not distributed and will not distribute any
prospectus or other offering material, other than the Preliminary Prospectus and
the Prospectus, in connection with the offer and sale of the Shares;
(ccc) the Company has complied and will comply with all the provisions of
Florida Statutes, Section 517.075 (Chapter 92-198, Laws of Florida); neither the
Company nor any of the Subsidiaries or to the knowledge of the Company,
affiliates of the Company does business with the government of Cuba or, to the
knowledge of the Company, with any person or affiliate located in Cuba;
(ddd) except as otherwise disclosed in the Prospectus, the Company has not
incurred any liability for any broker's or finder's fees or similar payments in
connection with the transactions herein contemplated;
(eee) no business relationship, direct or indirect, exists between or
among the Company or any of the Subsidiaries on the one hand, and the directors,
officers, directors, managers, shareholders, partners, customers or suppliers of
the Company or any of the Subsidiaries on the other hand, that is required by
Form S-11 under the Securities Act and the Securities Act Regulations to be
described in the Registration Statement and the Prospectus and which is not so
described;
(fff) the board of directors of the Company has determined that each of
the directors of the Company described as an "Independent Director" in the
Prospectus is "independent" in accordance with the rules and regulations of the
New York Stock Exchange;
(ggg) neither the Company nor any of the Subsidiaries is and, after giving
effect to the offering and sale of the Shares and the use of the proceeds as
described under the caption "Use of Proceeds" in the Prospectus, will not be an
"investment company" or an entity "controlled" by an
18
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(hhh) there are no existing or, to the knowledge of the Company,
threatened labor disputes with the employees of the Company or any of the
Subsidiaries which, individually or in the aggregate, would be reasonably
expected to have a Material Adverse Effect;
(iii) the statistical and market related data included in the Prospectus
and the Registration Statement are based on or derived from sources that the
Company believes to be reliable and accurate;
(jjj) the Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Code for its taxable year
ended December 31, 2004, and its current and proposed method of operation as
described in 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, 2005 and thereafter; 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 event that would cause or is likely to cause the Company to
fail to qualify as a real estate investment trust under the Code for the taxable
year ending December 31, 2005 or anytime thereafter;
(kkk) the factual description of, and the assumptions and representations
regarding, the Company's organization and actual and proposed method of
operation set forth in the Prospectus under the heading "Federal Income Tax
Consequences Of Our Status As A REIT" are accurate and present fairly the
matters referred to therein;
(lll) the unaudited pro forma consolidated financial statements included
in the Prospectus comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X;
(mmm) neither the Company, any of its Subsidiaries, nor any Real Property
owned, directly or indirectly, by the Company has sustained, since the Company's
ownership of such Real Property, any loss or interference with its business from
fire, explosion, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or arbitrators' or court or
governmental action, order or decree that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect, otherwise than
as set forth in the Prospectus;
(nnn) no Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company or making any other distribution on such
Subsidiary's capital stock or other equity interests, except for such
prohibitions or other limitations as will not prevent the Company from meeting
the requirements for qualification and for taxation as a real estate investment
trust under the Code; and
(ooo) any certificate signed by any officer of the Company or any
Subsidiary delivered to the Representative or to legal counsel for the
Underwriters pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
19
Each Selling Stockholder severally and not jointly represents and
warrants to the Underwriters that:
(a) such Selling Stockholder has full legal power and authority to enter
into this Agreement; this Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with its terms,
except to the extent that the indemnification and contribution provisions of
Section 9 hereof may be limited by applicable law and except as the enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditor's rights generally or by
general equitable principles;
(b) such Selling Stockholder has full legal power and authority to enter
into each of the Custody Agreement and the Power of Attorney; the Custody
Agreement and the Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, and is enforceable against
such Selling Stockholder in accordance with the terms thereof, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by general
equitable principles, and except to the extent that the indemnification and
contribution provisions of Section 9 hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof;
(c) certificates, or book entries, in negotiable form for the Shares to
be sold hereunder by such Selling Stockholder have been placed in custody under
and may be transferred under the Custody Agreement and the Power of Attorney for
such Selling Stockholder; such Selling Stockholder agrees that the Shares
represented by the certificates held in custody for him or it under the Custody
Agreement are for the benefit of and coupled with and subject to the interest
hereunder of the Custodian, the Committee, the Underwriters, each other Selling
Stockholder and the Company; and that the Power of Attorney, the arrangements
made by such Selling Stockholder for such custody and the appointment of the
Custodian and the Committee by such Selling Stockholder are irrevocable; and
that the obligations of such Selling Stockholder hereunder shall not be
terminated by operation of law, whether by the death, disability, incapacity or
liquidation of any Selling Stockholder or the occurrence of any other event; if
any Selling Stockholder should die, become disabled or incapacitated or be
liquidated or if any other such event should occur before the delivery of the
Shares hereunder; certificates for the Shares shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement and
actions taken by the Committee and the Custodian pursuant to the Custody
Agreement and the Power of Attorney shall be as valid as if such death,
liquidation, incapacity or other event had not occurred, regardless of whether
or not the Custodian or the Committee, or either of them, shall have received
notice thereof;
(d) such Selling Stockholder now has, and before the First Closing Date
will have, (i) good and marketable title to the Shares to be sold by such
Selling Stockholder hereunder, free and clear of all liens, encumbrances and
claims whatsoever (other than pursuant to the Custody Agreement and the Power of
Attorney), and (ii) full legal right and power, and all authorizations and
approvals required by law and under its organizational documents, if applicable,
to enter into this Agreement and the Custody Agreement and the Power of
Attorney, to sell, transfer and
20
deliver such Shares to the Underwriters hereunder and to make the
representations, warranties and agreements made by such Selling Stockholder
herein; upon the delivery of and payment for such Shares hereunder, such Selling
Stockholder will deliver good, valid and marketable title thereto, free and
clear of any pledge, lien, mortgage, encumbrance, security interest or other
claim;
(e) before the First Closing Date or the applicable Option Closing Date,
all stock transfer or other taxes (other than income taxes) which are required
to be paid in connection with the sale and transfer of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder will have been fully paid
or provided for by such Selling Stockholder and all laws imposing such taxes
will have been fully complied with;
(f) the execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, this
Agreement, the Custody Agreement and the Power of Attorney will not contravene
or conflict with, result in a breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach of, or default under), or require the consent of any other party to,
(i) any provision of the organizational documents of such Selling Stockholder,
if applicable, or any other agreement or instrument to which such Selling
Stockholder is a party or by which it is bound or under which it is entitled to
any right or benefit, (ii) any provision of applicable law or any judgment,
order, decree or regulation applicable to such Selling Stockholder of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Stockholder, or (iii) any provision of any
license, indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the Selling Stockholder is a party or by which
it or its properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Selling Stockholder; or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the
Selling Stockholder;
(g) no approval, authorization, consent or order of, or registration or
filing with any federal, state or local governmental or regulatory commission,
board, body, authority or agency is required for the Selling Stockholder's
execution, delivery and performance of this Agreement, its consummation of the
transactions contemplated herein, and its sale and delivery of the Shares, other
than (i) such as have been obtained, or will have been obtained before the First
Closing Date, as the case may be, under the Securities Act and the Exchange Act,
and from the NASD, (ii) such approvals as have been obtained in connection with
the approval of the listing of the Shares on the New York Stock Exchange and
(iii) any necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the Underwriters;
(h) such Selling Stockholder (i) has carefully reviewed the
representations and warranties of the Company contained in this Agreement and
has no reason to believe that such representations and warranties are untrue or
incorrect; (ii) is familiar with the Registration Statement and the Prospectus
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement or the Prospectus which has had or may
have a Material Adverse Effect and (iii) is not prompted to sell Shares by any
information concerning the Company which is not set forth in the Registration
Statement or the Prospectus;
21
(i) all material information with respect to such Selling Stockholder
contained in the Registration Statement and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any amendment
or supplement thereto) complied and will comply in all material respects with
all applicable provisions of the Securities Act and the Securities Act
Regulations, contains and will contain all statements of material fact required
to be stated therein in accordance with the Securities Act and the Securities
Act Regulations, and does not and will not contain an 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; such Selling
Stockholder confirms as accurate the number of shares of Common Stock set forth
opposite such Selling Stockholder's name in the Prospectus under the caption
"Principal and Selling Stockholders" (both prior to and after giving effect to
the sale of the Shares);
(j) other than as permitted by the Securities Act and the Securities Act
Regulations, such Selling Stockholder has not distributed and will not
distribute any Preliminary Prospectus, the Prospectus or any other offering
material in connection with the offering and sale of the Shares; such Selling
Stockholder has not taken, directly or indirectly, any action intended, or which
might reasonably be expected, to cause or result in, under the Securities Act,
the Securities Act Regulations or otherwise, or which has constituted,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(k) such Selling Stockholder has not relied upon the Representative or
legal counsel for the Underwriters for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(l) such Selling Stockholder does not have any registration or other
similar rights to have any equity or debt securities registered for sale by the
Company under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as are described in the
Prospectus under "Shares Eligible for Future Sale;"
(m) no consent, approval or waiver is required under any instrument or
agreement to which such Selling Stockholder is a party or by which it is bound
or under which it is entitled to any right or benefit, in connection with the
offering, sale or purchase by the Underwriters of any of the Shares which may be
sold by such Selling Stockholder under this Agreement or the consummation by
such Selling Stockholder of any of the other transactions contemplated hereby;
(n) such Selling Stockholder does not have any preemptive right, co-sale
right or right of first refusal or other similar right to purchase any of the
Shares that are to be sold by the Company or any of the other Selling
Stockholders to the Underwriters pursuant to this Agreement; and such Selling
Stockholder does not own any warrants, options or similar rights to acquire, and
does not have any right or arrangement to acquire, any capital stock, right,
warrants, options or other securities from the Company, other than those
described in the Registration Statement and the Prospectus;
(o) except as otherwise disclosed to the Underwriters in writing, such
Selling Stockholder nor any of its affiliates is (i) required to register as a
"broker" or "dealer" in accordance with the provisions of the Exchange Act or
the Exchange Act Regulations, (ii) an
22
affiliate of a broker or dealer or (iii) a member or a person associated with a
member of the NASD (within the meaning of Article I of the Bylaws of the NASD);
(p) such Selling Stockholder purchased the Shares in the ordinary course
of its business; and
(q) at the time of the purchase of the Shares, such Selling Stockholder
had no arrangement or understanding, directly or indirectly, with any person, or
any intent, to distribute the Shares.
4. Certain Covenants:
The Company and the Operating Partnership hereby agree with each
Underwriter:
(a) that the Company shall cooperate with the Representative and legal
counsel for the Underwriters and furnish such information as may be required to
qualify or register the Shares for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws or Canadian provincial
Securities laws or other foreign laws of those jurisdictions designated by the
Representative, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for
the distribution of the Shares; provided that the Company shall not be required
to qualify as a foreign corporation or to take any action that would subject it
to general service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation; and
that the Company shall use its best efforts to prevent the suspension of the
qualification or registration of (or any such exemption relating to) the Shares
for offering, sale or trading in any jurisdiction and will advise the
Representative promptly of such suspension or any initiation or threat of any
proceeding for any such purpose; and that, in the event of the issuance of any
order suspending such qualification, registration or exemption, the Company
shall use its best efforts to obtain the withdrawal thereof at the earliest
possible moment;
(b) that if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, the Company
will use its best efforts to cause such post-effective amendment to become
effective as soon as possible;
(c) to prepare the Prospectus in a form approved by the Underwriters and
file such Prospectus (or a term sheet as permitted by Rule 434) with the
Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00
a.m. (New York City time), on the second day following the execution and
delivery of this Agreement or on such other day as the parties may mutually
agree and to furnish promptly and with respect to the initial delivery of such
Prospectus, not later than 10:00 a.m. (New York City time) on the second day
following the execution and delivery of this Agreement, or on such other day as
the parties may mutually agree, to the Underwriters copies of the Prospectus (or
of the Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) in such quantities and at such locations as the Underwriters may
reasonably request for the purposes contemplated by the Securities Act
Regulations, which Prospectus and any amendments or supplements thereto
furnished to the
23
Underwriters will be identical to the version transmitted to the Commission for
filing via XXXXX, except to the extent permitted by Regulation S-T;
(d) to advise the Representative promptly and (if requested by the
Representative) to confirm such advice in writing, when any post-effective
amendment to the Registration Statement becomes effective under the Securities
Act Regulations;
(e) that, after the date of this Agreement, the Company shall promptly
advise the Representative in writing (i) of the receipt of any comments of, or
requests for additional or supplemental information from, the Commission, (ii)
of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any preliminary
prospectus or the Prospectus, (iii) of the time and date that any post-effective
amendment to the Registration Statement becomes effective and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate from listing
the Common Stock from the New York Stock Exchange, or of the threatening or
initiation of any proceedings for any of such purposes; and that the Company
shall use its best efforts to prevent the issuance of any such order or
suspension, removal or termination from listing, and, if the Commission shall
enter any such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment; the Company
shall advise the Representative promptly of any proposal to amend or supplement
the Registration Statement or Prospectus and to file no such amendment or
supplement to which the Representative shall reasonably object; additionally,
the Company agrees that it shall comply with the provisions of Rules 424(b),
430A and 434, as applicable, under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under such
Rule 424(b) were received in a timely manner by the Commission;
(f) for a period of two years from the date of this Agreement (i) to
furnish to the Representative and, upon request, to each of the other
Underwriters as soon as available, copies of all annual reports mailed to
holders of Common Stock;
(g) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to the
Shares is required to be delivered under the Securities Act Regulations which,
in the judgment of the Company or in the reasonable opinion of the
Representative or legal counsel for the Underwriters, would require the making
of any change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law and, during such time, to promptly prepare and furnish to the
Underwriters copies of the proposed amendment or supplement before filing any
such amendment or supplement with the Commission and thereafter promptly furnish
at the Company's own expense to the Underwriters and to dealers, copies in such
quantities and at such locations as the Representative may from time to time
reasonably request of an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus
24
as so amended or supplemented will not, in the light of the circumstances when
it is so delivered, be misleading, or so that the Prospectus, as amended or
supplemented, will comply with the law;
(h) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representative, be required by
the Securities Act or requested by the Commission;
(i) that, prior to filing with the Commission any amendment to the
Registration Statement or supplement or amendment to the Prospectus or any
Prospectus pursuant to Rule 424 under the Securities Act, the Company shall
furnish to the Representative and counsel for the Underwriters for review a copy
of each such proposed amendment or supplement, and the Company shall not file
any such proposed amendment or supplement to which the Representative reasonably
object;
(j) to furnish promptly to each Representative a signed copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith or
incorporated by reference therein) and such number of conformed copies of the
foregoing as the Representative may reasonably request;
(k) to furnish to each Representative, promptly upon filing with the
Commission subsequent to the effective date of the Prospectus and during the
period that a prospectus relating to the Shares is required to be delivered
under the Act in connection with sales by any Underwriter, a copy of any
document proposed to be filed with the Commission pursuant to Section 13, 14, or
15(d) of the Exchange Act and during such period to file all such documents in
the manner and within the time periods required by the Exchange Act, the
Exchange Act Regulations and the Xxxxxxxx-Xxxxx Act;
(l) to apply the net proceeds from the sale of the Shares in the manner
described under the caption "Use of Proceeds" in the Prospectus;
(m) to make generally available to its security holders and to deliver
to the Representative as soon as practicable, but in any event not later than
the end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement an earnings statement complying
with the provisions of Section 11(a) of the Securities Act (in form, at the
option of the Company, complying with the provisions of Rule 158 of the
Securities Act Regulations,) covering a period of 12 months beginning after the
effective date of the Registration Statement;
(n) to use its best efforts to maintain the listing of the Shares on,
and comply at all times with the published rules and regulations of, the New
York Stock Exchange and to file with the New York Stock Exchange all documents
and notices required by the New York Stock Exchange of companies that have
securities for which quotations are reported by the New York Stock Exchange;
(o) to engage and maintain, at its expense, a registrar and transfer
agent for the Shares;
25
(p) to refrain during a period of 180 days from the date of the
Prospectus, without the prior written consent of the Representative (which
consent may be withheld at the sole discretion of the Representative), from,
directly or indirectly, (i) offering, pledging, selling, contracting to sell,
selling any option or contract to purchase, purchasing any option or contract to
sell, granting any option for the sale of, establishing an open "put equivalent
position" within the meaning of Rule 16a-1(h) under the Exchange Act, or
otherwise disposing of or transferring, (or entering into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of), any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for shares of Common
Stock, or filing any registration statement under the Securities Act with
respect to any of the foregoing, or (ii) entering into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the shares of Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise; provided, however, that the Company may issue its Common Stock or
options to purchase and other awards respecting its Common Stock, or Common
Stock upon exercise of options, pursuant to any stock option, stock bonus or
other stock plan or arrangement described in the Prospectus, and may file a
registration statement under the Securities Act with respect thereto, but only
if the holders of such shares, options, or shares issued upon exercise of such
options, agree in writing not to sell, offer, dispose of or otherwise transfer
any such shares or options during such 180 day period without the prior written
consent of the Representative (which consent may be withheld at the sole
discretion of the Representative). Notwithstanding the foregoing, if (1) during
the last 17 days of the 180-day restricted period, the Company issued an
earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, the restrictions imposed by
this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event; and may file and amend its shelf registration
statement for the resale of its outstanding Common Stock as provided for by the
Registration Rights Agreement dated April 7, 2004;
(q) not to, and to use its best efforts to cause its officers,
directors, partners and affiliates, as applicable, not to, (i) take, directly or
indirectly prior to termination of the underwriting syndicate contemplated by
this Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the
future 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 any of the Shares, (ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of the Shares or (iii) pay or agree to pay
to any person any compensation for soliciting any order to purchase any other
securities of the Company;
(r) (i) to cause each officer, director and 10% or more shareholder of
the Company to furnish to the Representative, prior to the First Closing Date, a
letter agreement substantially in the form of Exhibit B hereto, pursuant to
which each such person shall agree not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any Common Stock or securities
convertible into or exchangeable for
26
Common Stock or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case for a period of 180 days from the
date of the Prospectus with respect to officers and directors of the Company and
for a period of 90 days with respect to any 10% or more shareholder of the
Company, without the prior written consent of the Representative on behalf of
the Underwriters; to enforce all existing agreements between the Company and any
of its security holders that prohibit the sale, transfer, assignment, pledge or
hypothecation of any of the Company's securities in connection with the
Company's April 2004 private placement; to direct the transfer agent to place
stop transfer restrictions upon any such securities of the Company that are
bound by such existing "lock-up" agreements for the duration of the periods
contemplated in such agreements. Notwithstanding the foregoing, if (1) during
the last 17 days of the 180-day or 90-day, as applicable, restricted period, the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of the 180-day or 90-day,
as applicable, restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
180-day, or 90-day, as applicable period, the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event;
(s) that during the time which a Prospectus relating to the Shares is
required to be delivered under the Securities Act Regulations, the Company shall
file, on a timely basis, with the Commission and the New York Stock Exchange all
reports and documents in the manner required by the Exchange Act, the Exchange
Act Regulations and the Xxxxxxxx-Xxxxx Act; additionally, the Company shall
report the use of proceeds from the issuance of the Shares as may be required
under Rule 463 under the Securities Act;
(t) that the Company will comply with all of the provisions of any
undertakings in the Registration Statement;
(u) that the Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Shares in such a manner as would
require the Company or any of its Subsidiaries to register as an investment
company under the Investment Company Act; and
(v) that the Company will have within 75 days of the First Closing Date
of this offering established and will maintain disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act)
which are effective to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act, is
recorded, processed, summarized and reported, within the time periods specified
in the Commission's rules and forms, and that such information is accumulated
and communicated to the Company's management, including its Chief Executive
Officer and Chief Financial Officer as appropriate, to allow timely decisions
regarding required disclosure.
27
Each Selling Stockholder hereby agrees with each Underwriter:
(a) to deliver to the Representative prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-8 (if
the Selling Stockholder is a non-United States person, within the meaning of the
Code) or Form W-9 (if the Selling Stockholder is a United States person, within
the meaning of the Code).
(b) if, at any time prior to the date on which the distribution of the
Shares as contemplated herein and in the Prospectus has been completed, as
determined by the Representative, such Selling Stockholder has knowledge of the
occurrence of any event as a result of which the Prospectus or the Registration
Statement, in each case as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, that such Selling Stockholder will promptly notify
the Company and the Representative.
(c) to deliver to the Company or the Underwriters such documentation as
the Company or the Underwriters or any of their respective counsel may
reasonably request in order to effectuate any of the provisions of this
Agreement.
(d) to refrain during a period of 60 days from the date of the
Prospectus, without the prior written consent of the Representative (which
consent may be withheld at the sole discretion of the Representative), from,
directly or indirectly, (i) offering, pledging, selling, contracting to sell,
selling any option or contract to purchase, purchasing any option or contract to
sell, granting any option for the sale of, establishing an open "put equivalent
position" within the meaning of Rule 16a-1(h) under the Exchange Act, or
otherwise disposing of or transferring (or entering into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of), any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or requesting
the filing of any registration statement under the Securities Act with respect
to any of the foregoing (provided that the Company may file a registration
statement solely for the resale of Common Stock), or (ii) entering into any swap
or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise; provided, however, that such Selling Stockholder may sell the
Shares contemplated to be sold pursuant to this Agreement. Notwithstanding the
foregoing, if (1) during the last 17 days of the 60-day restricted period, the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of the 60-day restricted
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 60-day period, the restrictions
imposed by this Agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
28
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of experts), each
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii) the
preparation, issuance and delivery of the certificates for the Shares to the
Underwriters, including any stock or other transfer taxes or duties payable upon
the sale of the Shares to the Underwriters, (iii) all necessary issue, transfer
and other stamp taxes in connection with the issuance and sale of the Shares to
the Underwriters, (iv) all fees and expenses of the Company's counsel and
independent public or certified public accountants, (v) the printing of this
Agreement and any dealer agreements and furnishing of copies of each to the
Underwriters and to dealers (including costs of mailing and shipment), (vi) the
qualification of the Shares for offering and sale under state laws that the
Company and the Representative have mutually agreed are appropriate and the
determination of their eligibility for investment under state law as aforesaid
(including with respect to such qualification and determination of eligibility,
the legal fees and filing fees and other reasonable disbursements of counsel for
the Underwriters assuming that the Common Stock is approved for listing on the
New York Stock Exchange and the printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to dealers,
(vii) filing for review of the public offering of the Shares by the NASD
(including the legal fees and filing fees and other reasonable disbursements of
counsel for the Underwriters relating thereto), (viii) the fees and expenses of
any transfer agent or registrar for the Shares and miscellaneous expenses
referred to in the Registration Statement, (ix) the fees and expenses incurred
in connection with the inclusion of the Shares for trading on the New York Stock
Exchange, (x) all costs and expenses incident to the travel and accommodation of
the Company's and the Underwriters' employees in making road show presentations
with respect to the offering of the Shares, (xi) Internet road show expenses,
(xii) CommScan costs, (xiii) preparing and distributing bound volumes or an
electronic compilation on CD of transaction documents for the Representative and
its legal counsel and (xiv) the performance of the Company's other obligations
hereunder. Upon the request of the Representative, the Company will provide
funds in advance for filing fees. It is understood, however, that except as
provided in this Section 5(a) and Section 5(c), 9(a) and 9(b) hereof, the
Underwriters will pay all of their own costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes on the sale of any of the
Shares by them and any advertising expenses connected with any offer they make.
(b) The Selling Stockholders agree with each Underwriter to pay
(directly or by reimbursement) all fees and expenses incident to the performance
of their obligations under this Agreement which are not otherwise specifically
provided for herein, including, but not limited to, (i) fees and expenses of
counsel and other advisors for such Selling Stockholders, (ii) fees and expenses
of the Custodian and (iii) expenses and taxes incident to the sale and delivery
of the Shares to be sold by such Selling Stockholder to the Underwriters
hereunder (which taxes, if any, may be deducted by the Custodian).
29
(c) If this Agreement shall be terminated by the Underwriters, or any of
them, pursuant to Section 7 hereof, the Company will reimburse the Underwriters
or such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (such as printing,
facsimile, courier service, accommodations, travel and the fees and
disbursements of Underwriters' counsel) and any other advisors, accountants,
appraisers, etc. reasonably incurred by such Underwriters in connection with
this Agreement or the transactions contemplated herein.
6. Conditions of the Underwriters' Obligations:
(a) The obligations of the Underwriters hereunder to purchase Shares on
the First Closing Date or on each Option Closing Date, as applicable, are
subject to the accuracy of the representations and warranties on the part of the
Company and the Selling Stockholders hereunder and under the Custody Agreement
and the Power of Attorney on the date hereof and on the First Closing Date and
on each Option Closing Date, as applicable, the performance by the Company and
the Selling Stockholders of their respective covenants and other obligations
hereunder and under the Custody Agreement and the Power of Attorney and to the
satisfaction of the following further conditions at the First Closing Date or on
each Option Closing Date, as applicable:
(b) The Company shall furnish to the Underwriters on the First Closing
Date and on each Option Closing Date an opinion of Baker, Donelson, Bearman,
Xxxxxxxx & Xxxxxxxxx, PC, counsel for the Company and the Subsidiaries, and
addressed to the Underwriters and dated the First Closing Date and each Option
Closing Date, as applicable, and in form and substance satisfactory to Hunton &
Xxxxxxxx LLP, counsel for the Underwriters in the form of Exhibit D.
(c) Each Selling Stockholder shall furnish to the Underwriters at the
First Closing Date and on each Option Closing Date an opinion of counsel for the
Selling Stockholders, addressed to the Underwriters and dated the First Closing
Date and each Option Closing Date, as applicable, in form and substance
satisfactory to Hunton & Xxxxxxxx LLP in the form of Exhibit E.
(d) The Underwriters shall have received from each of KPMG LLP,
registered public accounting firm for the Company, and Parente Xxxxxxxx LLP,
letters dated, respectively, as of the date of this Agreement, the First Closing
Date and each Option Closing Date, as the case may be, addressed to the
Underwriters, in form and substance satisfactory to the Representative and
counsel for the Underwriters, containing statements to the effect that they are
independent accountants with respect to the Company within the meaning of the
Securities Act and the applicable published rules and regulations adopted by the
Commission thereunder and the Public Company Accounting Oversight Board, and
statements and information of the type ordinarily included in accountant's
"comfort letters" to underwriters, delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the audited and
unaudited financial statements and certain financial information contained in
the Registration Statement and the Prospectus (and the Representative shall have
received an additional six conformed copies of such accountants' letter for each
of the several Underwriters);
30
In the event that the letters referred to above set forth any
changes in common or preferred stock, increases in long-term debt or decreases
in total assets or total stockholders equity or any decrease in consolidated
revenues or in the total or per share amounts of net income, it shall be a
further condition to the obligations of the Underwriters that (A) such letters
shall be accompanied by a written explanation of the Company as to the
significance thereof, unless the Representative and counsel for the Underwriters
deem such explanation unnecessary, and (B) such changes, decreases or increases
do not, in the sole judgment of the Representative and counsel for the
Underwriters, make it impractical or inadvisable to proceed with the purchase
and delivery of the Shares as contemplated by the Registration Statement.
(e) At the First Closing Date and each Option Closing Date, the
Underwriters shall have received from each of KPMG LLP and Parente Xxxxxxxx LLP,
independent public or certified public accountants, a letter dated such date, in
form and substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that they reaffirm the statements made in the letter
furnished by them pursuant to subsection (d) of this Section 6, except that the
specified date referred to therein for the carrying out of procedures shall be
no more than two business days prior to the First Closing Date or Option Closing
Date, as the case may be (and the Representative shall have received an
additional six conformed copies of such accountants' letter for each of the
several Underwriters).
(f) The Underwriters shall have received at the First Closing Date and
on each Option Closing Date, as applicable, the favorable opinion of Hunton &
Xxxxxxxx LLP, dated the First Closing Date or such Option Closing Date,
addressed to the Underwriters and in form and substance satisfactory to the
Underwriters.
(g) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have objected
in writing.
(h) Prior to the First Closing Date and each Option Closing Date (i) no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment to the Registration Statement or any order preventing
or suspending the use of any Preliminary Prospectus or Prospectus or any
supplement thereto shall have been issued or be in effect, and no proceedings
for such purpose shall have been initiated or threatened, by the Commission, and
no suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or threatening of any proceedings for any of
such purposes, shall have occurred; (ii) all requests for additional information
on the part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriters and counsel to the Underwriters; and (iii) the
Registration Statement and the Prospectus shall not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) Prior to the First Closing Date and each Option Closing Date, the
Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner and
within the time period required by Rule 424(b) under the Securities Act; or the
Company shall have filed a post-effective amendment to the Registration
Statement containing the information required by such Rule 430A, and such
post-effective amendment shall have become effective; or, if the Company elected
to rely upon
31
Rule 434 under the Securities Act and obtained the Underwriters' consent
thereto, the Company shall have filed a term sheet with the Commission in the
manner and within the time period required by such Rule 424(b).
(j) Between the time of execution of this Agreement and the First
Closing Date or the relevant Option Closing Date there shall not have been any
Material Adverse Change, and (ii) no transaction which is material and
unfavorable to the Company shall have been entered into by the Company or any of
the Subsidiaries, in each case, which in the Representative's sole judgment,
makes it impracticable or inadvisable to proceed with the public offering of the
Shares as contemplated by the Registration Statement.
(k) The Shares shall have been approved for listing on the New York
Stock Exchange.
(l) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(m) The Underwriters shall have received lock-up agreements from each
officer and director of the Company substantially in the form of Exhibit B
attached hereto, and such lock-up agreements shall be in full force and effect.
(n) The Underwriters shall have received, at the First Closing Date and
on each Option Closing Date, a certificate of duly authorized officers of the
Company and the Operating Partnership, dated as of such First Closing Date or
Option Closing Date, to the effect that the signers of such certificates have
carefully examined the Prospectus, any amendment or supplement to the Prospectus
and this Agreement, and that:
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct, as if
made on and as of the date hereof, and the Company has complied with
all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has
been issued and no proceedings for that purpose have been instituted
or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at
all times subsequent thereto up to the date hereof, the Registration
Statement and the Prospectus, and any amendments or supplements
thereto contained all material information required to be included
therein by the Securities Act or the Exchange Act and the applicable
rules and regulations of the Commission thereunder, as the case may
be, and in all material respects conformed to the requirements of
the Securities Act or the Exchange Act and the applicable rules and
regulations of the Commission thereunder, as the case may be; the
Registration Statement and the Prospectus, and any amendments or
supplements thereto, did not and do not include any untrue statement
of a material fact or omit to state a material fact
32
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and, since the effective date of the
Registration Statement, there has occurred no event required to be
set forth in an amendment or supplemented Prospectus which has not
been so set forth; and
(iv) subsequent to the date of the most recent financial
statements included in the Prospectus, there has not been (a) any
Material Adverse Change, (b) any transaction that is material to the
Company and the Subsidiaries considered as one enterprise, (c) any
obligation, direct or contingent, that is material to the Company
and the Subsidiaries considered as one enterprise, incurred by the
Company or the Subsidiaries, (d) any change in the capitalization of
the Company or any Subsidiary that is material to the Company and
the Subsidiaries considered as one enterprise, (e) any dividend or
distribution of any kind declared, paid or made on the capital stock
of the Company or the capital stock, limited liability company
membership interests or units of limited partnership interest of any
Subsidiary except, in the case of each of clauses (a) through (e)
above, as disclosed in the Prospectus, or (f) any loss or damage
(whether or not insured) to the property of the Company or any
Subsidiary which has been sustained or will have been sustained
which has a Material Adverse Effect.
(o) The Underwriters shall receive, at the First Closing Date and on
each Option Closing Date, a certificate of the Secretary of the Company
certifying as to (i) the Articles of Incorporation and any amendments thereto,
(ii) the Bylaws and any amendments thereto, (iii) resolutions of the Board of
Directors of the Company authorizing the execution and delivery of this
Agreement and the other offering documents, (iv) the Certificate of Limited
Partnership of the Operating Partnership and the Partnership Agreement and any
amendments thereto, (v) correspondence with the Commission, (vi) a specimen
Common Stock certificate, (vii) the number of shares of Common Stock authorized
and reserved for issuance by the Company and (viii) the minute books of the
Company.
(p) Each Selling Stockholder will, at the First Closing Date and on each
Option Closing Date, deliver to the Underwriters a certificate, to the effect
that:
(i) the representations and warranties of such Selling
Stockholder set forth in this Agreement, the Custody Agreement and
the Power of Attorney are true and correct as of such date as if
made on such date; and
(ii) such Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder and under this Agreement, the
Custody Agreement and the Power of Attorney at or prior to such
date.
(q) On the date hereof, the Company and the Selling Stockholders shall
have furnished for review by the Underwriters copies of the Custody Agreement
and the Power of
33
Attorney executed by each of the Selling Stockholders and such further
information, certificates and documents as the Underwriters may reasonably
request.
(r) The Company, the Operating Partnership and the Selling Stockholders,
as applicable, shall have furnished to the Underwriters such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus, the representations, warranties and
statements of the Company, the Operating Partnership and the Selling
Stockholders contained herein, in the Custody Agreement and in the Power of
Attorney, and the performance by the Company, the Operating Partnership and the
Selling Stockholders of their respective covenants contained herein and therein,
and the fulfillment of any conditions contained herein or therein, as of the
First Closing Date or any Option Closing Date, as the Underwriters may
reasonably request.
7. Termination:
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of the Representative, at any
time prior to the First Closing Date or any Option Closing Date, if (i) the
Company is unable or unwilling to perform its obligations under this Agreement,
(ii) any of the conditions specified in Section 6 that are not dependent on the
representations, warranties or agreements of the Selling Stockholders shall not
have been fulfilled when and as required by this Agreement to be fulfilled, or
(iii) if there has been, in the judgment of the Representative, since the
respective dates as of which information is given in the Registration Statement,
any Material Adverse Change, or any development involving a prospective Material
Adverse Change, or material change in management of the Company or any
Subsidiary, whether or not arising in the ordinary course of business, or (iv)
if there has occurred any outbreak or escalation of national or international
hostilities, other national or international calamity or crisis (including
without limitation any terrorist or similar attack), any change in the United
States or international financial markets, or any substantial change in United
States' or international economic, political, financial or other conditions, the
effect of which on the financial markets of the United States is such as to make
it, in the sole judgment of the Representative, impracticable to market the
Shares in the manner and on the terms described in the Prospectus or enforce
contracts for the sale of the Shares, or (v) if trading or quotation in any
securities of the Company has been suspended by the Commission or by the New
York Stock Exchange, or if trading generally on the New York Stock Exchange or
Nasdaq Stock Market has been suspended (including an automatic halt in trading
pursuant to market-decline triggers, other than those in which solely program
trading is temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or the
NASD or by order of the Commission or any other governmental authority, or (vi)
a general banking moratorium shall have been declared by any federal, New York,
Alabama or Maryland authorities or (vii) any federal or state statute,
regulation, rule or order of any court or other governmental authority has been
enacted, published, decreed or otherwise promulgated which, in the opinion of
the Representative, materially adversely affects or will materially adversely
affect the business or operations of the Company, or (viii) any action has been
taken by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which, in the opinion of the Representative, has a
material adverse effect on the securities markets in the United States, or (ix)
the Company shall have sustained a loss by strike, fire,
34
flood, earthquake, accident or other calamity of such character as in the
judgment of the Representative may interfere materially with the conduct of the
business and operations of the Company regardless of whether or not such loss
shall have been insured.
If the Representative elects to terminate this Agreement as provided
in this Section 7, the Company and the Underwriters shall be notified promptly
by telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply in all material respects with any of the terms of this
Agreement, the Company and the Selling Stockholders shall not be under any
obligation or liability under this Agreement (except as provided in Sections 5
and 9 hereof) and the Underwriters shall be under no obligation or liability to
the Company and the Selling Stockholders under this Agreement (except as
provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments:
If any Underwriter shall default at the First Closing Date or on an
Option Closing Date in its obligation to take up and pay for the Shares to be
purchased by it under this Agreement on such date, the Representative shall have
the right, within 48 hours after such default, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Shares which such Underwriter shall have
agreed but failed to take up and pay for (the "Defaulted Shares"). Absent the
completion of such arrangements within such 36-hour period, (i) if the total
number of Defaulted Shares does not exceed 10% of the total number of Shares to
be purchased on such date, each non-defaulting Underwriter shall take up and pay
for (in addition to the number of Shares which it is otherwise obligated to
purchase on such date pursuant to this Agreement) the portion of the total
number of Shares agreed to be purchased by the defaulting Underwriter on such
date in the proportion that its underwriting obligations hereunder bears to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Shares exceeds 10% of the total number of Shares to be
purchased on such date, the Representative may terminate this Agreement by
notice to the Company, without liability of any party to any other party except
that the provisions of Section 9 hereof shall at all times be effective and
shall survive such termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be
purchased on such date are purchased on such date by the Underwriters (or by
substituted Underwriters selected by the Representative with the approval of the
Company or selected by the Company with the approval of the Representative).
If a new Underwriter or Underwriters are substituted for a
defaulting Underwriter in accordance with the foregoing provision, the Company
or the non-defaulting Underwriters shall have the right to postpone the First
Closing Date or the relevant Option Closing Date for a period not exceeding
seven business days in order that any necessary changes in the Registration
Statement and Prospectus and other documents may be effected.
35
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the same effect as
if such substituted Underwriter had originally been named in this Agreement.
Nothing contained herein shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
9. Indemnity and Contribution by the Company, the Operating
Partnership, the Selling Stockholders and the Underwriters:
(a) The Company and the Operating Partnership, jointly and severally,
agree to indemnify, defend and hold harmless each Underwriter, its officers and
employees, and any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, liability, damage, claim (including the reasonable cost of
investigation) or expense, as incurred, which, jointly or severally, any such
Underwriter or controlling person may incur under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss,
expense, liability, damage, claim or expense arises out of or is based upon in
whole or in part (i) any inaccuracy or any breach of any representation,
warranty or covenant of the Company or the Operating Partnership contained
herein, (ii) any failure on the part of the Company or the Operating Partnership
to perform their respective obligations hereunder, (iii) any voluntary action on
the part of the Company's Board of Directors to revoke the Company's election,
or to otherwise intentionally cease to no longer qualify, as a REIT under the
requirements of the Code at anytime on or before the end of the 2007 tax year,
(iv) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company, including any
information deemed to be a part thereof pursuant to Rule 430A or Rule 434 under
the Securities Act) or the Prospectus (the term Prospectus for the purpose of
this Section 9 being deemed to include any Preliminary Prospectus, the
Prospectus, as amended or supplemented by the Company, or (v) any omission or
alleged omission to state a material fact required to be stated in any such
Registration Statement or Prospectus or necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company and the Operating Partnership
shall not be liable for any such loss, liability, claim, damage or expense that
arises out of or is based upon any information furnished in writing by the
Underwriters for use in the Registration Statement or Prospectus. The indemnity
agreement set forth in this Section 9(a) shall be in addition to any liability
which the Company and the Operating Partnership may otherwise have.
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify, defend and hold harmless each Underwriter and any person who controls
any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, the Company and the Operating Partnership, from
and against any loss, liability, claim (including the reasonable cost of
investigation) or expense, as incurred, which, jointly or severally, any such
Underwriter or controlling person may incur under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation or at common
law or otherwise, insofar as such loss,
36
liability, damage, claim or expense arises out of or is based upon in whole or
in part, (i) any breach of any representation, warranty or covenant of such
Selling Stockholder contained herein, in the Custody Agreement or in the Power
of Attorney, (ii) any failure on the part of such Selling Stockholder to comply
with any applicable law, rule or regulation relating to the offering of
securities being made pursuant to the Prospectus, (iii) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company, including any information deemed to be a part
thereof pursuant to Rule 430A or Rule 434 under the Securities Act), the
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or (B) any omission or alleged omission
to state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading; but only
insofar as any such loss, liability, damage, claim or expense arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in and in conformity with
information furnished in writing by such Selling Stockholder to the Company
expressly for use in such Registration Statement or Prospectus; provided,
however, that the indemnity agreement contained in this subsection (b) shall not
require any such Selling Stockholder to reimburse the Underwriters, the Company
and the Operating Partnership for amounts in excess of the gross sale price of
the Shares sold by such Selling Stockholder pursuant to this Agreement. The
indemnity agreement set forth in this Section 9(b) shall be in addition to any
liability that the Selling Stockholders may otherwise have.
If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company, the
Operating Partnership or any Selling Stockholder pursuant to subsection (a) or
(b) above, such Underwriter shall promptly notify the Company, the Operating
Partnership or such Selling Stockholder, as applicable, in writing of the
institution of such action, and the Company, the Operating Partnership or such
Selling Stockholder, as applicable, shall assume the defense of such action,
including the employment of counsel and payment of expenses; provided, however,
that any failure or delay to so notify the Company, the Operating Partnership or
such Selling Stockholder, as applicable, will not relieve the Company, the
Operating Partnership or such Selling Stockholder, as applicable, of any
obligation hereunder, except to the extent that its ability to defend is
actually impaired by such failure or delay. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such counsel
shall have been authorized in writing by the Company, the Operating Partnership
or such Selling Stockholder, as applicable, in connection with the defense of
such action, or the Company, the Operating Partnership or such Selling
Stockholder, as applicable, shall not have employed counsel to have charge of
the defense of such action within a reasonable time or such Underwriter or
controlling person shall have reasonably concluded (based on the advice of
counsel) that there may be defenses available to it or them that are different
from or additional to those available to the Company, the Operating Partnership
or such Selling Stockholder, as applicable (in which case the Company, the
Operating Partnership and such Selling Stockholder shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company or the
37
Selling Stockholder, as applicable, and paid as incurred (it being understood,
however, that the Company nor any Selling Stockholder shall not be liable for
the expenses of more than one separate firm of attorneys for the Underwriters or
controlling persons in any one action or series of related actions in the same
jurisdiction (other than local counsel in any such jurisdiction) representing
the indemnified parties who are parties to such action).
(c) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company, the Operating Partnership, each Selling
Stockholder, the Company's directors, the Company's officers that signed the
Registration Statement, and any person who controls the Company or any Selling
Stockholder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any loss, liability, damage, claim
(including the reasonable cost of investigation) or expense, as incurred, which,
jointly or severally, the Company, the Operating Partnership, the Selling
Stockholder or any such person may incur under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), but only insofar as such
loss, expense, liability, damage or claim arises out of or is based upon (A) any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by such Underwriter through
the Representative to the Company expressly for use in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or the Prospectus, or (B) any omission or
alleged omission to state a material fact in connection with such information
required to be stated either in such Registration Statement or Prospectus
necessary to make such information, in the light of the circumstances under
which made, not misleading; and to reimburse the Company, the Operating
Partnership each Selling Stockholder, any such director or officer of the
Company or any such controlling person for any legal and other expense
reasonably incurred by the Company, the Operating Partnership each Selling
Stockholder, any such director or officer of the Company or any such controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The indemnity
agreement set forth in this Section 9(c) shall be in addition to any liability
that such Underwriter may otherwise have. The Company, the Operating Partnership
and each of the Selling Stockholders, hereby acknowledges that the statements
set forth in paragraphs 3, 17 and 23 and the first sentence of paragraph ten
under the caption "Underwriting" in the Preliminary Prospectus and the
Prospectus (to the extent such statements relate to the Underwriters) constitute
the only information furnished by or on behalf of any Underwriter through the
Representative to the Company for purposes of the Company's representations and
warranties in Section 3(o) hereof and for purposes of this Section 9.
If any action is brought against the Company, the Operating
Partnership, any such director or officer of the Company, any Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, the
Operating Partnership, such director or officer of the Company, the Selling
Stockholder or such person shall promptly notify the Representative in writing
of the institution of such action and the Representative, on behalf of the
Underwriters, shall assume the defense of such action, including the employment
of counsel and payment of expenses; provided, however,
38
that any failure or delay to so notify the Representative will not relieve the
Underwriters of any obligation hereunder, except to the extent that its ability
to defend is actually impaired by such failure or delay. The Company, the
Operating Partnership, each Selling Stockholder, such director or officer of the
Company or such controlling person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company, the Operating Partnership, such director or officer
of the Company, the Selling Stockholder or such person unless the employment of
such counsel shall have been authorized in writing by the Representative in
connection with the defense of such action or the Representative shall not have
employed counsel to have charge of the defense of such action within a
reasonable time or the Company, the Operating Partnership, such director or
officer of the Company, such Selling Stockholder or such person shall have
reasonably concluded (based on the advice of counsel) that there may be defenses
available to it or them that are different from or additional to those available
to the Underwriters (in which case the Representative shall not have the right
to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by such
Underwriter and paid as incurred (it being understood, however, that the
Underwriters shall not be liable for the expenses of more than one separate firm
of attorneys in any one action or series of related actions in the same
jurisdiction (other than local counsel in any such jurisdiction) representing
the indemnified parties who are parties to such action).
(d) The indemnifying party under this Section 9 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 party agrees to indemnify the indemnified party against any loss,
liability, damage, claim or expense by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding.
(e) If the indemnification provided for in this Section 9 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a),
(b), (c) and (d) of this Section 9 in respect of any losses, expenses,
liabilities, damages or claims referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the aggregate amount paid or payable by such indemnified party as
a result of such losses, expenses, liabilities, damages or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Operating Partnership and the Selling Stockholders, on the one
hand, and the Underwriters, on the other hand, from the offering of the Shares
pursuant to this Agreement or (ii) if (but only if) the allocation provided by
clause (i) above is not available for any reason, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, the Operating Partnership and
the Selling Stockholders, on the one hand, and of the Underwriters, on the other
hand, in connection with the statements or omissions which resulted in such
losses, expenses, liabilities, damages or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Operating Partnership and the Selling
39
Stockholders, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Shares pursuant to this Agreement shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting expenses)
received by the Company (which, for purposes of this subsection, account for the
relative benefits received by the Operating Partnership) or the Selling
Stockholders, as applicable, bear to the underwriting discounts and commissions
received by the Underwriters. The relative fault of the Company, of the
Operating Partnership, of the Selling Stockholders and of the Underwriters shall
be determined by reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
or any such inaccurate or alleged inaccurate representation or warranty relates
to information supplied by the Company, the Operating Partnership, and the
Selling Stockholders, on one hand, or by the Underwriters, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any claim or action. The provisions set forth in Sections 9(b) and (c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9(e); provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Sections 9(b) and (c) for purposes of indemnification.
(f) The Company, the Operating Partnership, the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 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 which does not take account of the equitable considerations
referred to in subsection (e)(i) and, if applicable (ii), above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the underwriting discounts and commissions applicable to
the Shares purchased by such Underwriter as set forth on Schedule II hereof and
any Option Shares and no Selling Stockholder shall be required to contribute any
amount in excess of the gross sale price of the Shares sold by such Selling
Stockholder pursuant to this Agreement as set forth in Schedule I hereof and any
Option Shares. 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 9 are several in proportion to their respective underwriting commitments
and not joint. For purposes of this Section 9, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Section 15 of the Securities Act and Section 20 of the Exchange
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
10. Failure of One or More of the Selling Stockholders:
If one or more of the Selling Stockholders shall fail to meet one of
more of its conditions set forth in Section 6 hereof or otherwise fail to sell
and deliver to the Underwriters
40
the Shares to be sold and delivered by such Selling Stockholder at the First
Closing Date pursuant to this Agreement, then such failure shall have no effect
on the Underwriters' obligations hereunder to purchase the Shares which the
Company and the other Selling Stockholders have agreed to sell and deliver in
accordance with the terms hereof. If one or more of the Selling Stockholders
shall fail to meet one of more of its conditions set forth in Section 6 hereof
or otherwise fail to sell and deliver to the Underwriters the Shares to be sold
and delivered by such Selling Stockholder pursuant to this Agreement at the
First Closing Date, then the Underwriters shall have the right, by written
notice from the Representative to the Company and the Selling Stockholders, to
postpone the First Closing Date, as the case may be, but in no event for longer
than seven days in order that the required changes, if any, to the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected.
11. Qualified Independent Underwriter:
The Company hereby confirms that at its request X.X. Xxxxxx
Securities Inc. has without compensation acted as "qualified independent
underwriter" (in such capacity, the "QIU" within the meaning of Rule 2720 of the
Conduct Rules of the NASD in connection with the offering of the Shares. The
Company and the Operating Partnership and the Selling Stockholders will
severally and not jointly indemnify and hold harmless the QIU against any
losses, expenses, liabilities, damages or claims, joint or several, to which the
QIU may become subject, under the Securities Act or otherwise, insofar as such
losses, expenses, liabilities, damages or claims (or actions in respect thereof)
arise out of or are based upon the QIU's acting (or alleged failing to act) as
such "qualified independent underwriter" and will reimburse the QIU for any
legal or other expenses reasonably incurred by the QIU in connection with
investigating or defending any such loss, expense, liability, damage or claim or
action as such expenses are incurred; and provided, however, that each Selling
Stockholder shall only be subject to liability under this Section 11 to the
extent such liability arises out of or is based upon (i) any untrue statement or
alleged untrue statement or upon an omission or alleged omission based upon
information furnished in writing to the Representative by such Selling
Stockholder, (ii) a breach of a representation or warranty given by such Selling
Stockholder in this Agreement, the Power of Attorney or the Custody Agreement or
(iii) any failure on the part of such Selling Stockholder to comply with any
applicable law, rule or regulation relating to the offering of securities being
made pursuant to the Prospectus; and provided, further, that the liability under
this Section 11 of each Selling Stockholder shall be limited to an amount equal
to the aggregate gross proceeds to such Selling Stockholder from the sale of
Shares sold by such Selling Stockholder hereunder.
12. Survival:
The respective indemnities, agreements, representations, warranties
and other statements of the Company, of the Operating Partnership, their
respective officers and directors, of the Selling Stockholders and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Company, the Operating Partnership or any of its or
their partners, officers, directors, directors or any controlling person, or the
Selling Stockholders, as the case may be, and will survive delivery of and
payment for the Shares sold hereunder and any termination of this Agreement.
41
13. Notices:
Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered to Friedman,
Billings, Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Syndicate Department, with a copy to Hunton & Xxxxxxxx LLP,
Riverfront Plaza, East Tower, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. XxXxx, Esquire; if to the Company, shall be sufficient in
all respects if delivered to the Company at the offices of the Company at
Medical Properties Trust, Inc., 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000, Attention: Xxxxxxx X. Xxxxxxx, Esquire, with a copy to Baker,
Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC, Suite 1600, 000 00xx Xxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxx, Esquire; or if to a Selling
Stockholder, c/o Xxxxxxx X. Xxxxxxx.
14. Governing Law; Headings:
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
15. Partial Unenforceability:
The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of
any other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
16. Parties at Interest:
The Agreement herein set forth has been and is made solely for the
benefit of the Underwriters, the Company, the Operating Partnership, the Selling
Stockholders and the controlling persons, directors and officers referred to in
Section 9 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
17. Entire Agreement; Amendments, Modifications and Waivers:
This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. This Agreement may not be amended or modified unless in writing
by all of the parties hereto, and no condition herein (express or implied) may
be waived unless waived in writing by each party whom the condition is meant to
benefit.
42
18. Confidentiality:
The Representative, each Underwriter, and their counsel shall use
all reasonable efforts to keep confidential, in accordance with its customary
procedures for handling confidential information and safe and sound lending
practices, any non-public information supplied to it by the Company, the
Operating Partnership and the Selling Stockholders pursuant to this Agreement
which is marked as confidential at the time such information is so furnished,
provided, that nothing contained herein shall limit the disclosure of any such
information: (i) to the extent required by statute, rule, regulation, subpoena
or court order, (ii) to regulators, auditors and/or accountants, in connection
with any litigation to which Representative, any Underwriter or their counsel is
a party, (iii) to any Underwriter, so long as such Underwriter, shall have been
instructed to treat such information as confidential in accordance with this
Section 18, or (iv) to counsel for Representative or any Underwriter.
In the event that Representative or any Underwriter receives a
request or demand to disclose any confidential information pursuant to any
subpoena or court order, Representative and such Underwriter, as the case may
be, agrees (i) to the extent permitted by applicable law or if permitted by
applicable law, to the extent the Representative or such Underwriter determines
in good faith that it will not create any risk of liability to Representative or
such Underwriter, Representative or such Underwriter will promptly notify the
Company and the Operating Partnership of such request so that the Company and
the Operating Partnership may seek a protective order or other appropriate
relief or remedy and (ii) if disclosure of such information is required,
disclose such information and, subject to reimbursement by Company and the
Operating Partnership of Representative's or such Underwriter's expenses,
cooperate with the Company and the Operating Partnership in the reasonable
efforts to obtain an order or other reliable assurance that confidential
treatment will be accorded to such portion of the disclosed information which
the Company or the Operating Partnership so designates, to the extent permitted
by applicable law or if permitted by applicable law, to the extent
Representative or such Underwriter determines in good faith that it will not
create any risk of liability to Representative or such Underwriter.
In no event shall this Section 18 or any other provision of this
Agreement or applicable law be deemed: (i) to apply to or restrict disclosure of
information that has been or is made public by the Company, the Operating
Partnership or any third party or otherwise becomes generally available to the
public other than as a result of a disclosure in violation hereof, (ii) to apply
to or restrict disclosure of information that was or becomes available to
Representative or any Underwriter on a non-confidential basis from a person
other than the Company or the Operating Partnership, (iii) to require
Representative or any Underwriter to return any materials furnished by the
Company or the Operating Partnership to Representative or any Underwriter. The
obligations of Representative and each Underwriter under this Section 18 shall
supersede and replace the obligations of Representative and each Underwriter
under any confidentiality letter signed prior to the date hereof or any other
arrangements concerning the confidentiality of information provided by the
Company or the Operating Partnership to Representative or any Underwriter. In
addition, Representative or any Underwriter may disclose information relating to
the proposed offer and sale of the Shares and may otherwise use the corporate
name and logo of the Company in "tombstones" or other advertisements or public
statements in accordance with the Securities Act and the Securities Act
Regulations.
43
19. Counterparts and Facsimile Signatures:
This Agreement may be signed by the parties in counterparts which
together shall constitute one and the same agreement among the parties. A
facsimile signature shall constitute an original signature for all purposes.
[Signature Page Follows]
44
If the foregoing correctly sets forth the understanding among the
Company, the Operating Partnership, the Selling Stockholders and the
Underwriters, please so indicate in the space provided below for the purpose,
whereupon this Agreement shall constitute a binding agreement among the Company,
the Operating Partnership, the Selling Stockholders and the Underwriters.
Very truly yours,
MEDICAL PROPERTIES TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: EVP and General Counsel
MPT OPERATING PARTNERSHIP, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: EVP and General Counsel
SELLING SHAREHOLDERS LISTED ON
SCHEDULE I ATTACHED HERETO
By: Xxxxxxx X. Xxxxxxx
as Attorney-in-Fact
/s/ Xxxxxxx X. Xxxxxxx
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Managing Director
For itself and as Representative of the several
Underwriters named on Schedule II hereto.
[Signature page to Underwriting Agreement]
45
SCHEDULE I
Number of Initial
Name of Party Selling Shares Shares to be Sold
---------------------------- -----------------
Medical Properties Trust, Inc. ............................. 11,365,000
Elm Ridge Value Partners Offshore Fund, Ltd................. 407,000
Elm Ridge Capital Partners, L.P............................. 266,000
Elm Ridge Value Partners, L.P............................... 27,000
HFR ED Master Performance Trust............................. 1,823
----------
Total....................................................... 12,066,823
==========
I-1
SCHEDULE II
Number of Initial
Underwriter Shares to be Purchased
----------- ----------------------
Friedman, Billings, Xxxxxx & Co., Inc......................... 5,695,079
X.X. Xxxxxx Securities Inc.................................... 3,629,218
Wachovia Capital Markets, LLC................................. 1,451,687
Xxxxxx, Xxxxxxxx & Company, Incorporated...................... 390,839
X.X. Xxxxxxx & Sons, Inc...................................... 150,000
BB&T Capital Markets, A division of Xxxxx & Xxxxxxxxxxxx...... 150,000
Xxxxx Brothers & Company...................................... 150,000
Xxxxxxxxxxx & Co., Inc........................................ 150,000
Xxxx, Xxxx & Co., LLC......................................... 150,000
Sterne, Agee & Xxxxx, Inc..................................... 150,000
----------
Total................................................... 12,066,823
==========
II-1
