EXHIBIT 1.1
WINDROSE MEDICAL PROPERTIES TRUST
2,300,000 Common Shares
Par Value $0.01 per Share
UNDERWRITING AGREEMENT
April 11, 2006
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
c/o Xxxxxx X. Xxxxx & Co. Incorporated,
as Representative of the several Underwriters,
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Windrose Medical Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes to sell and issue an aggregate of 2,300,000 shares of
the Company's common shares of beneficial interest, $0.01 par value per share
(the "Common Shares"), to the several underwriters named in Schedule A hereto
(the "Underwriters"), for whom Xxxxxx X. Xxxxx & Co. Incorporated is acting as
representative (the "Representative"), said shares to be issued and sold by the
Company being hereinafter called the "Underwritten Shares." The Company also
proposes to grant to the Underwriters an option to purchase up to 345,000
additional Common Shares to cover over-allotments (the "Option Shares"). The
Option Shares, together with the Underwritten Shares, are hereinafter referred
to as the "Shares." The Company is the general partner of Windrose Medical
Properties, L.P., a Virginia limited partnership (the "Operating Partnership"),
that serves as the Company's primary operating subsidiary.
The Company wishes to confirm as follows its agreement with the
Underwriters in connection with the Underwriters' purchase of the Shares.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"), a
Registration Statement (as defined below) on Form S-3, including a base
prospectus (the "Base Prospectus") with respect to the public offering and sale
of certain securities to be issued from time to time by the Company, including
the Shares. The Company has filed with the Commission such amendments to such
Registration Statement as
may have been required prior to the date of this Agreement. Such Registration
Statement has been declared effective by the Commission. Copies of such
Registration Statement, including any amendments thereto, each related
Preliminary Prospectus (as defined below) contained therein, and the exhibits,
financial statements and schedules thereto have heretofore been made available
by the Company to you. A final prospectus containing the information permitted
to be omitted at the time of the Registration Statement's effectiveness by Rule
430A or 430B of the Act will be filed promptly by the Company with the
Commission in accordance with Rule 424(b) of the Act. The term "Registration
Statement" as used herein means the registration statement on Form S-3 (File No.
333-112183) at the time such Registration Statement became effective or any part
thereof is deemed effective under Rule 430B(f)(2) of the Act (the "Effective
Date"), including financial statements and all exhibits and documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act
and, if applicable, the information deemed to be included by Rule 430A or 430B
of the Act. The term "Prospectus" as used herein means the Base Prospectus
together with the final prospectus supplement relating to the offering of the
Shares as filed pursuant to Rule 424(b) of the Act (the "Prospectus
Supplement"), including any information and documents incorporated by reference
therein from time to time pursuant to Item 12 of Form S-3 under the Act. The
term "Preliminary Prospectus" as used herein shall mean a preliminary prospectus
as contemplated by Rule 430, 430A or 430B of the Act included at any time in the
Registration Statement, including the Base Prospectus, including any information
and documents incorporated by reference therein from time to time pursuant to
Item 12 of Form S-3 under the Act. The term "Free Writing Prospectus" as used
herein shall have the meaning set forth in Rule 405 of the Act. The term "Issuer
Free Writing Prospectus" as used herein shall have the meaning set forth in Rule
433 of the Act. The term "Disclosure Package" as used herein shall mean the
Issuer Free Writing Prospectus identified in Schedule C hereto, if any, any
other Free Writing Prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package and any other
information included in Schedule C hereto.
Any Issuer Free Writing Prospectus required to be filed pursuant to Rule
433(d) of the Act, if any, and the Prospectus delivered to the Underwriters for
use in connection with the offering of the Shares have been and will be
identical to the respective versions thereof 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. For purposes of
this Agreement, the words "amend," "amendment," "amended," "supplement" or
"supplemented" with respect to the Registration Statement, the Prospectus, any
Free Writing Prospectus or the Disclosure Package shall mean amendments or
supplements to the Registration Statement, the Prospectus, any Free Writing
Prospectus or the Disclosure Package, as the case may be, as well as documents
filed after the date of this Agreement and prior to the completion of the
distribution of the Shares and incorporated by reference therein as described
above. As used herein, the term "Incorporated Documents" means the documents
which are incorporated by reference in the Registration Statement, the
Prospectus, or any amendment or supplement thereto during the period the
Prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the
Act) is required to be delivered in connection with the sale of the Shares by
the Underwriters or any dealer.
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2. AGREEMENTS TO SELL AND PURCHASE.
(a) The Company hereby agrees, subject to all the terms and conditions set
forth herein and in reliance upon the representations and warranties of the
Underwriters set forth herein, to issue and sell to the Underwriters and,
upon the basis of the representations, warranties and agreements of the
Company and the Operating Partnership contained in this Agreement and
subject to all the terms and conditions set forth in this Agreement, the
Underwriters agree, severally and not jointly, to purchase from the
Company, at a purchase price of $14.097 per Share (representing a public
offering price of $14.80 per Share, less an underwriting discount of $0.703
per Share) (the "Purchase Price Per Share"), the number of Underwritten
Shares set forth opposite such Underwriter's name in Schedule A hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties of the Underwriters herein set forth, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to 345,000 Option Shares in the aggregate at
the Purchase Price Per Share. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Shares by the Underwriters.
Said option may be exercised in whole or in part at any time on or before
the 30th day after the date hereof upon written notice by the
Representative to the Company setting forth the number of Option Shares as
to which the several Underwriters are exercising the option and the Date of
Delivery (as defined below). The number of Option Shares to be purchased by
each Underwriter shall be the same percentage of the total number of Option
Shares to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Shares, subject to such adjustments as the
Underwriters in their absolute discretion shall make to eliminate any
fractional shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by the Underwriters
that the Underwriters propose to offer the Shares for sale to the public as set
forth in the Prospectus in the section entitled "Underwriting" as soon after
this Agreement has become effective as in the Underwriters' judgment is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery of and payment for
the Underwritten Shares and the Option Shares (if the option provided for in
Section 2(b) hereof shall have been exercised before the Business Day, defined
below, prior to the Closing Date) shall be made at 10:00 a.m., Eastern time, on
April 18, 2006, or at such time on such later date not more than three Business
Days after the foregoing date as the Representative shall designate, which date
and time may be postponed by agreement between the Representative and the
Company (such date and time of delivery and payment for the Shares being herein
called the "Closing Date"). Delivery of the Shares shall be made to the
Representative for the respective accounts of the Underwriters against payment
by the Underwriters through the Representative of the purchase price thereof to
or upon the order of the Company by wire transfer payable in same-day funds to
an account specified by the Company.
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If the option provided for in Section 2(b) hereof is exercised on or after
the Business Day prior to the Closing Date, the Company will deliver the Option
Shares (at the expense of the Company) to the Representative, at 0000 Xxxxxxxxxx
Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000, on the date (the "Date of Delivery")
specified by the Representative (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the
Company. If settlement for the Option Shares occurs after the Closing Date, the
Company will deliver to the Representative on the Date of Delivery for the
Option Shares, and the obligation of the Underwriters to purchase the Option
Shares shall be conditioned upon receipt of, opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 8 hereof.
Delivery of the Underwritten Shares and the Option Shares shall be made
through the facilities of The Depository Trust Company unless the Representative
shall otherwise instruct. "Business Day" shall mean any day other than a
Saturday, Sunday, a legal holiday, or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York City.
5. AGREEMENTS.
(a) The Company agrees with the Underwriters as follows:
(i) 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 commercially reasonable efforts to
cause such post-effective amendment to become effective as soon as
possible and will advise the Underwriters promptly and, if requested
by the Underwriters, will confirm such advice in writing, when such
post-effective amendment has become effective.
(ii) The Company will advise the Underwriters promptly and, if
requested by the Underwriters, will confirm such advice in writing:
(1) of any request by the Commission that the Company amend or
supplement the Registration Statement, the Disclosure Package, the
Prospectus or for additional information; (2) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement (as amended or supplemented) or preventing or
suspending the use of any Preliminary Prospectus, Disclosure Package
or the Prospectus or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (3) within the period of time
referred to in paragraph (v) below, of any change in the Company's
condition (financial or other), business, properties, net worth or
results of operations, or of the happening of any event, which makes
any statement of a material fact made in the Registration Statement,
the Disclosure Package or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to
or changes in the Registration Statement,
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the Disclosure Package or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act to
be stated therein or necessary in order to make the statements therein
not misleading, or of the necessity to amend or supplement the
Disclosure Package or the Prospectus (as then amended or supplemented)
to comply with the Act. If at any time within the time period referred
to in paragraph (v) below the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the
Company will use commercially reasonable efforts to obtain the
withdrawal of such order at the earliest possible time.
(iii) The Company will furnish to the Underwriters, without charge and
upon the Underwriters' request, (1) such number of conformed copies of
the Registration Statement as originally filed and of each amendment
thereto, but without exhibits, as the Underwriters may reasonably
request, (2) such number of copies of the Incorporated Documents,
without exhibits, as the Underwriters may reasonably request, and (3)
one copy of the exhibits to the Incorporated Documents.
(iv) The Company will not file any amendment or supplement to the
Registration Statement or make any amendment or supplement to the
Disclosure Package or the Prospectus (or any other prospectus relating
to the Shares filed pursuant to Rule 424(b) of the Act that differs
from the Prospectus as filed pursuant to such Rule 424(b)) or, prior
to the end of the period of time referred to in the first sentence in
paragraph (v) below, file any document which upon filing, becomes an
Incorporated Document, of which the Underwriters shall not previously
have been advised and furnished with a copy or to which the
Underwriters shall have reasonably objected or which is not in
compliance with the Act; and the Company will promptly notify you
after it shall have received notice thereof of the time when any
amendment to the Registration Statement becomes effective or when any
supplement to the Disclosure Package or the Prospectus has been filed.
(v) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time during the period, as in the
opinion of counsel for the Underwriters, when a prospectus (or in lieu
thereof, the notice contemplated by Rule 173(a) of the Act) relating
to the Shares is required to be delivered under the Act (the
"Prospectus Delivery Period"), the Company will expeditiously deliver
to each Underwriter and each dealer, without charge, as many copies of
the Prospectus (and of any amendment or supplement thereto) as the
Underwriters may reasonably request. Subject to the provisions of
paragraph (x) below, the Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in the United States in which the Shares are offered by
the Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering and sale of the Shares and during the
Prospectus Delivery Period.
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(vi) The Company will obtain the Underwriters' consent before taking,
or failing to take, any action that would cause the Company to make an
offer of Shares that would constitute an Issuer Free Writing
Prospectus or to be required to file a Free Writing Prospectus
pursuant to Rule 433(d) of the Act, other than the Issuer Free Writing
Prospectus, if any, listed on Schedule C hereto.
(vii) The Company will not take any action that would result in any
Underwriter or the Company being required to file with the Commission
pursuant to Rule 433(d) of the Act a Free Writing Prospectus prepared
by or on behalf of the Underwriters that the Underwriters otherwise
would not have been required to file thereunder.
(viii) If the Disclosure Package is being used to solicit offers to
buy the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Disclosure Package in writing in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading, or if, in the opinion of the Company or the Underwriters,
it is necessary to amend or supplement the Disclosure Package to
comply with the Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Company shall forthwith prepare, file with
the Commission and furnish, at its own expense, to the Underwriters
and to any dealer upon request, a reasonable number of copies of such
amendments or supplements to the Disclosure Package so that statements
in the Disclosure Package as so amended or supplemented will not, in
light of the circumstances under which they were made, when delivered
to a prospective purchaser, be misleading or so that the Disclosure
Package, as amended or supplemented, will comply with the Act or the
Exchange Act.
(ix) If, during the Prospectus Delivery Period (1) any event relating
to or affecting the Company or of which the Company shall be advised
in writing by the Underwriters shall occur as a result of which, in
the opinion of the Company or the Underwriters, the Disclosure Package
or the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (2) any
event shall occur as a result of which any Free Writing Prospectus
conflicted or would conflict with the information in the Registration
Statement, or (3) it shall be necessary to amend or supplement the
Registration Statement, the Disclosure Package or the Prospectus to
comply with the Act or the Exchange Act, the Company will forthwith at
its expense prepare and file with the Commission, and furnish to the
Underwriters a reasonable number of copies of such amendment or
supplement or other filing that will correct such statement or
omission or effect such compliance.
(x) During the Prospectus Delivery Period, the Company will furnish
such proper information as may be lawfully required and otherwise
cooperate in
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qualifying the Shares for offer and sale under the securities or blue
sky laws of such jurisdictions as the Underwriters may reasonably
designate and will file and make in each year such statements or
reports as are or may be reasonably required by the laws of such
jurisdictions; provided, however, that the Company shall not be
required to qualify as a foreign entity or shall be required to
qualify as a dealer in securities or to file a general consent to
service of process under the laws of any jurisdiction in any
jurisdiction where it is not now so subject except for those
jurisdictions necessary for the offer and sale of the Shares.
(xi) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, which
shall satisfy the provisions of Section 11(a) of the Act and Rule 158
of the Act.
(xii) If this Agreement shall terminate or shall be terminated after
execution by the Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement to be complied with or fulfilled by the
Company, the Company agrees to reimburse the Underwriters for all
reasonable out of pocket expenses (including reasonable fees and
expenses of counsel) incurred by the Underwriters in connection with
this Agreement.
(xiii) The Company will apply the net proceeds from the sale of the
Shares substantially in accordance with the description set forth
under the caption "Use of Proceeds" in the Prospectus and the
Disclosure Package.
(xiv) The Company will timely file the Prospectus pursuant to Rule
424(b) under the Act and will advise the Underwriters or the
Underwriters' counsel of the time and manner of such filing.
(xv) Except as stated in this Agreement and in the Prospectus, the
Company has not taken, nor will it take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common
Shares to facilitate the sale or resale of the Shares.
(xvi) The Company will use its best efforts to list the Shares on the
New York Stock Exchange ("NYSE").
(xvii) Subject to the determination by the Board of Trustees of the
Company to the contrary, the Company will use its best efforts to meet
the requirements to qualify as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code") and to
cause the Operating Partnership to be treated as a partnership for
federal income tax purposes.
(xviii) Except as provided in this Agreement, the Company will not
offer, sell, contract to sell, pledge, or otherwise dispose of any
Common Shares or any securities convertible into, or exercisable or
exchangeable for, Common Shares or grant any options or warrants to
purchase Common Shares for a period of 30 days
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after the date of the Prospectus, without the prior written consent of
Xxxxxx X. Xxxxx & Co. Incorporated; provided however, the Company may
issue and sell Common Shares, or securities exercisable for Common
Shares, pursuant to: (1) the Company's 2002 Stock Incentive Plan; (2)
the Company's Direct Stock Purchase and Dividend Reinvestment Plan;
(3) upon the redemption of units of limited partnership interest of
the Operating Partnership (the "Units") in accordance with the First
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, as amended and supplemented; (4) upon the conversion of
the Company's 7.5% Series A cumulative convertible preferred shares of
beneficial interest, $0.01 par value per share; (5) upon the exercise
of options or warrants outstanding on the date hereof; (6) in
connection with the acquisition by the Company of properties or
assets; and (7) the Operating Partnership may issue Units in
connection with the acquisition of properties or assets.
Notwithstanding the foregoing, the Underwriters agree that the Company
may issue and sell up to 100,000 Common Shares during the period of 30
days after the date of the Prospectus, without the prior written
consent of Xxxxxx X. Xxxxx & Co. Incorporated, pursuant to a sales
agreement with Xxxxxxx Xxxxxxx Securities Corporation as described in
the Incorporated Documents.
(b) The Underwriters represent and agree that, without the prior written
consent of the Company, they have not made and will not make any offer
relating to the Shares that would constitute a Free Writing Prospectus.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE OPERATING
PARTNERSHIP. The Company and the Operating Partnership, jointly and severally,
represent and warrant to the Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the Act.
Neither the Commission nor any state or other jurisdiction or other
regulatory body has issued, and neither is, to the knowledge of the
Company, threatening to issue, any stop order under the Act or other order
suspending the effectiveness of the Registration Statement (as amended or
supplemented) or preventing or suspending the use of any Issuer Free
Writing Prospectus, the Disclosure Package or the Prospectus or suspending
the qualification or registration of the Shares for offering or sale in any
jurisdiction nor instituted or, to the knowledge of the Company, threatened
to institute proceedings for any such purpose. The Disclosure Package at
its date of issue and as of 7:00 p.m. Eastern time on the date hereof (the
"Initial Time of Sale"), the Registration Statement at each effective date
(or deemed effective date), and the Prospectus and any amendments or
supplements thereto when they are filed with the Commission contain or will
contain, as the case may be, all statements which are required to be stated
therein by, and in all material respects conform or will conform, as the
case may be, to the requirements of the Act. Neither the Registration
Statement nor any amendment thereto, as of the applicable effective date,
contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required to
be stated therein or necessary to make the statements therein, not
misleading. Neither the Prospectus nor any supplement thereto contains as
of the date of such Prospectus or supplement or will
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contain as of the date of such supplement, as the case may be, any untrue
statement of a material fact or omits or will omit to state any 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. Neither the Disclosure Package at the Initial Time of Sale
contains nor any supplement thereto will contain as of the date of such
supplement, as the case may be, any untrue statement of a material fact or
omits or will omit to state any 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. Notwithstanding
the foregoing, the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement, the
Disclosure Package or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information furnished to
the Company relating to the Underwriters by or on behalf of the
Underwriters expressly for use in the preparation thereof (as provided in
Section 12 hereof). There is no contract, agreement, understanding or
arrangement, whether written or oral, or document required to be described
in the Registration Statement, Disclosure Package or Prospectus or to be
filed as an exhibit to the Registration Statement which is not described or
filed as required.
(b) The Company is eligible to use Issuer Free Writing Prospectuses in
connection with the offering of the Shares pursuant to Rules 164 and 433 of
the Act. Any Issuer Free Writing Prospectus that the Company is required to
file pursuant to Rule 433(d) of the Act has been, or will be, timely filed
with the Commission in accordance with the requirements of the Act. Each
Issuer Free Writing Prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) of the Act or that was prepared by or on
behalf of or used by the Company complies or will comply in all material
respects with the requirements of the Act, including but not limited to
legending requirements. The Company has not prepared, used or referred to,
and will not, without the Underwriters' prior written consent, prepare, use
or refer to any Free Writing Prospectus. Each Issuer Free Writing
Prospectus, as of its issue date and at all times through the completion of
the offering and sale of the Shares, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the
information contained in the Prospectus. The Company filed the Registration
Statement with the Commission before using any Free Writing Prospectus.
(c) All disclosures contained in the Registration Statement or the
Prospectus regarding "non-GAAP financial measures" (as such term is defined
by the rules and regulations of the Commission) comply with Regulation G of
the Exchange Act, and Item 10 of Regulation S-K under the Act, to the
extent applicable.
(d) The Incorporated Documents when they were filed (or, if any amendment
with respect to any such document was filed, when such amendment was
filed), conformed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, any Incorporated
Documents filed after the date hereof and during the Prospectus Delivery
Period will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder;
no such Incorporated Document contained or will contain any untrue
statement of a material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made; and, when read together and with
the other information in each of the Disclosure Package and the Prospectus,
at the time the Registration Statement became effective or shall be deemed
effective, at the Initial Time of Sale and at the Closing Date or the
Delivery Date, as applicable, each such Incorporated Document did not or
will not, as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, in the light of
the circumstances under which they were made.
(e) The Company has been duly formed and is validly existing as a real
estate investment trust under and by virtue of the laws of the State of
Maryland and is in good standing with the State Department of Assessments
and Taxation of Maryland with full trust power and authority to own or
lease, as the case may be, and to operate its properties and conduct its
business as described in the Prospectus. The Company is duly qualified to
do business as a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification except where the
failure to be so qualified would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its Subsidiaries (as defined below), taken as
a whole, whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect"). Other than the entities listed on
Exhibit 21.01 to the Company's Annual Report on Form 10-K for the year
ended December 31, 2005, as amended, Windrose Capital Trust I, and any
other subsidiary formed during 2006 to date for the purpose of
acquisitions, whether or not completed (individually a "Subsidiary" and
collectively the "Subsidiaries" and for all purposes of this Agreement,
shall include the Operating Partnership), the Company does not own,
directly or indirectly, any capital stock or other equity securities or
interests of any corporation, partnership, limited liability company, joint
venture association or other entity.
(f) Each Subsidiary has been duly organized and is validly existing as a
limited partnership, limited liability company or corporation in good
standing under the laws of its state of organization, with all requisite
power and authority to own and lease its properties, and conduct its
business as described in the Prospectus, except where one or more
Subsidiary's failure to be duly organized, validly existing and in good
standing would not have a Material Adverse Effect. Each Subsidiary has
qualified to do business and is in good standing as a foreign limited
partnership, limited liability company or corporation in every jurisdiction
in which the ownership or leasing of its properties or the nature or
conduct of its business, as described in the Prospectus, requires such
qualification except where the failure to be so qualified would not have a
Material Adverse Effect.
(g) The authorized, issued and outstanding shares of beneficial interest of
the Company as of December 31, 2005 are as set forth in the Prospectus
under the caption "Capitalization." All the issued and outstanding Common
Shares of the Company, including the Shares to be sold by the Company, have
been duly authorized and validly issued, and are, or when issued against
payment therefor as authorized by the Company's
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Board of Trustees will be, fully paid and non-assessable. The Common Shares
of the Company conform in all material respects to the description of the
Common Shares contained in the Registration Statement and the Prospectus.
All offers and sales of the Company's Common Shares prior to the date
hereof were at all relevant times duly registered under the Act or were
exempt from the registration requirements of the Act and were duly
registered or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws. No
preemptive rights of shareholders exist with respect to any of the Shares
under the Maryland General Corporation Law, the Declaration of Trust (as
hereinafter defined) or the bylaws of the Company. No person or entity has
a right of participation or first refusal with respect to the sale of the
Shares by the Company. None of the issued shares of beneficial interest of
the Company has been issued in violation of any preemptive or similar
rights. Except as described in the Registration Statement, the Prospectus
and the proxy statement for the Company's 2006 annual meeting of
shareholders, (i) there are no outstanding options, warrants or other
rights calling for the issuance of any shares of beneficial interest of the
Company or any security convertible into or exchangeable for shares of
beneficial interest of the Company and (ii) there is no written commitment,
plan or arrangement to issue any shares of beneficial interest of the
Company or any security convertible into or exchangeable for shares of
beneficial interest of the Company. The Operating Partnership has not
issued any security or other equity interest other than units of limited
partnership interest (the "Units") issued to the Company and certain other
persons that are redeemable at the option of the holder thereof for cash,
common Units, or, at the Company's option, for Common Shares on a
one-for-one basis. None of the Units in the Operating Partnership has been
or will be issued or is owned or held in violation of any preemptive right.
The outstanding Units in the Operating Partnership have been issued by the
Operating Partnership in compliance with applicable federal and state
securities laws.
(h) All the outstanding shares of capital stock, limited liability company
interests or partnership interests of each Subsidiary, as the case may be,
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus, all
such interests are owned by the Company either directly or through wholly
owned subsidiaries (except that the Company, directly or indirectly, owns a
92% interest in Brierbrook Partners, L.L.C., a 51% interest in WMPT
Bellaire HP, L.P. and an approximate 43% interest in Lake Xxxx Medical
Investors Limited Partnership) free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances. No
such equity interest in any Subsidiary was issued in violation of the
preemptive or any similar right of any security holder of such Subsidiary.
(i) The Company has the trust power to enter into this Agreement and to
consummate the transactions contemplated herein. The Company has the trust
power to issue, sell and deliver the Shares as provided herein. This
Agreement has been duly authorized, executed and delivered by the Company.
(j) The Operating Partnership has the full legal right, power and authority
to enter into this Agreement and to consummate the transactions
contemplated herein. This
11
Agreement has been duly authorized, executed and delivered by the Operating
Partnership.
(k) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters in the manner contemplated herein and in the
Prospectus.
(m) Neither the issue and sale of the Shares nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its Subsidiaries pursuant to (i) the Articles of
Amendment and Restatement of the Company's Declaration of Trust, as
supplemented (the "Declaration of Trust"), or bylaws of the Company, as
amended and restated, the Certificate of Limited Partnership or Amended and
Restated Agreement of Limited Partnership, as amended (the "Partnership
Agreement") of the Operating Partnership or any of the applicable
organizational documents of any significant subsidiary as defined in Rule
1-02 of Regulation S-X under the Act, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which the
Company or any of its Subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its Subsidiaries or any of its or their properties,
except in the case of clauses (ii) and (iii), to the extent such conflicts,
breaches, violations, liens, charges and encumbrances, if any, would not
have a Material Adverse Effect.
(n) No holders of securities of the Company have rights to the registration
of such securities under the Registration Statement.
(o) The consolidated historical financial statements and schedules of the
Company incorporated by reference in the Registration Statement and
Prospectus present fairly, in all material respects, the consolidated
financial position of the Company as of the dates indicated and the
consolidated results of operations and consolidated cash flows for the
Company for the periods specified, all in conformity with United States
generally accepted accounting principles applied on a consistent basis. The
financial statement schedules included in the Company's Annual Report
on Form 10-K for the year ended December 31, 2005, as amended (the "Annual
Report"), have been compiled on a basis consistent with the financial
statements included in the Company's Annual Report
12
incorporated by reference in the Registration Statement and the Prospectus.
No other financial statements or schedules are required by Form S-3 or
otherwise to be included or incorporated by reference in the Registration
Statement or the Prospectus. The pro forma financial statements included in
the Prospectus and the Registration Statement include assumptions that
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma financial
statements included in the Prospectus and the Registration Statement. The
pro forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act.
(p) 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 or its or their property is pending or, to the knowledge
of the Company, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus Supplement and/or the Base
Prospectus (exclusive of any supplement thereto).
(q) Neither the Company nor any Subsidiary is in violation or default of
(i) any provision of its charter or bylaws or applicable organizational
documents, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such Subsidiary or any of its properties,
as applicable, except in the case of clauses (i), (ii) and (iii), such
violations or defaults as would not have a Material Adverse Effect.
(r) KPMG LLP, who has examined and reported upon the audited financial
statements and schedules of the Company and its consolidated subsidiaries
and upon the assessment of the Company's management of the Company's
internal control over financial reporting, including Management's Report on
Internal Control Over Financial Reporting contained in the Company's Annual
Report, incorporated by reference in the Registration Statement and the
Prospectus, are, and were during the periods covered by its reports, an
independent registered public accounting firm within the meaning of the
Act, the Exchange Act and the respective rules and regulations of the
Commission thereunder.
(s) There are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of the
Shares that have not been or will not be paid.
13
(t) The Company and each of its Subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or have
requested extensions thereof, except in any case in which the failure so to
file would not have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus Supplement and/or the Base Prospectus
(exclusive of any supplement thereto) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good
faith or as would not have a Material Adverse Effect, except as set forth
in or contemplated in the Prospectus Supplement and/or the Base Prospectus.
(u) No labor problem or dispute with the employees of the Company or any of
its Subsidiaries exists or, to the Company and the Operating Partnership's
knowledge, is threatened or imminent, that could have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus Supplement
and/or the Base Prospectus (exclusive of any supplement thereto dated after
the date hereof).
(v) The Company and each of its Subsidiaries, and their respective
Properties (as defined below), are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as are prudent and customary in the businesses in which they are engaged
except as such failure to be so insured would not have a Material Adverse
Effect; all policies of insurance insuring the Company or any of its
Subsidiaries or their respective businesses, assets, employees, officers,
trustees and directors are in full force and effect except as such failure
would not have a Material Adverse Effect; the Company and its Subsidiaries
are in compliance with the terms of such policies and instruments except as
such failure would not have a Material Adverse Effect; there are no claims
by the Company or any of its Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause except such as would not
have a Material Adverse Effect; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at an increase in cost that would not have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus Supplement
and/or the Base Prospectus (exclusive of any supplement thereto dated after
the date hereof).
(w) The Company and its Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal, state
or foreign regulatory authorities necessary to conduct their respective
businesses except such licenses, certificates, permits and authorizations
the failure to possess would not, individually or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any such Subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus
14
Supplement and/or the Base Prospectus (exclusive of any supplement thereto
dated after the date hereof).
(x) The Company maintains an internal control over financial reporting
system that, as of December 31, 2005, was effective to provide reasonable
assurance to the Company's management and Board of Trustees regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted
accounting principles.
(y) The Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares.
(z) The Company and its Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received and are in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice of
any actual or potential liability under any Environmental Laws, except
where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect, except as
set forth in or contemplated in the Prospectus Supplement and/or the Base
Prospectus (exclusive of any supplement thereto dated after the date
hereof). Except as set forth in the Prospectus, neither the Company nor any
of the Subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
(aa) In the ordinary course of its business, in connection with the
acquisition of properties, the Company periodically reviews the effect of
Environmental Laws on the acquisition properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus Supplement and/or the Base Prospectus
(exclusive of any supplement thereto dated after the date hereof).
(bb) The Company and its Subsidiaries are in compliance in all material
respects with all currently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (herein called
"ERISA"); no "reportable event" (as defined in ERISA) has occurred with
15
respect to any "pension plan" (as defined in Section 3(2) ERISA) for which
the Company or any material Subsidiary would have any liability; the
Company and its material Subsidiaries have not incurred and do not expect
to incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended (the "Code"); and each
"pension plan" for which the Company or any material Subsidiary would have
any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, that would reasonably be expected
to cause the loss of such qualification.
(cc) Except with respect to certain non-timely filings of reports required
by Section 16 of the Exchange Act by certain of the Company's trustees and
executive officers, there is and has been no failure on the part of the
Company and any of the Company's trustees or officers, in their capacities
as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Xxxxxxxx-Xxxxx Act").
(dd) The Company or its Subsidiaries have good and marketable title in fee
simple to, or a valid leasehold interest in, each property described in the
Prospectus (individually, a "Property," and together the "Properties"),
free and clear of all liens, encumbrances, claims, security interests,
restrictions and defects except such as are disclosed in the Prospectus or
that would not have a Material Adverse Effect. Neither the Company nor any
Subsidiary owns or leases any real property, except as described in the
Registration Statement or the Prospectus. Each of the Properties complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Properties), except if and to the extent
disclosed in the Prospectus and except for such failures to comply that
would not have a Material Adverse Effect. Each Property with respect to
which a certificate of need or similar approval to operate the Property is
required is presently, and at the Closing Date will be, operating pursuant
to a current, valid certificate of need or similar certificate except for
such failures to have such certificate or approval that would not have a
Material Adverse Effect. Neither the Company nor any Subsidiary has
knowledge of any pending or threatened condemnation proceeding, zoning
change, or other proceeding or action that will in any manner affect the
size of, use of, improvements on, construction on or access to a Property,
except such proceedings or actions that would not have a Material Adverse
Effect. The Company or a Subsidiary has obtained an owner's title insurance
policy from a title insurance company, or, if such title insurance policy
has not yet been issued, a binding commitment by such title insurance
company to issue such a policy, in any event covering each Property, with
coverage in an amount at least equal to the cost of acquisition of such
Property, including the principal amount of any indebtedness assumed with
respect to the Property.
(ee) Except as described in the Prospectus or to the extent the existence
of such lease would not interfere in any material respect with the use made
and proposed to be made of such Property by the Company or any Subsidiary,
the Company does not hold any Property under a ground lease.
16
(ff) The Company or a Subsidiary owns or possesses all trademarks, service
marks, tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, trade secrets, processes and other intangible
property rights and know-how necessary for the conduct of its business as
described in the Registration Statement (collectively, the "Intellectual
Property"). Except as described in the Prospectus, (i) no third parties
have received rights to any such Intellectual Property from the Company or
any Subsidiary, other than licenses granted in the ordinary course of
business; (ii) to the Company's and the Operating Partnership's knowledge,
there is no infringement by third parties of any such Intellectual
Property, (iii) there is no pending or, to the Company's and the Operating
Partnership's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's or a Subsidiary's rights in or to any such
Intellectual Property, and the Company and the Operating Partnership are
unaware of any facts which would form a basis for any such claim; (iv)
there is no pending or, to the Company's and the Operating Partnership's
knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and
the Company and the Operating Partnership are unaware of any facts which
would form a basis for any such claim; and (v) there is no pending or, to
the Company's and the Operating Partnership's knowledge, threatened action,
suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates, or would infringe or otherwise violate any
patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Company and the Operating Partnership are unaware of any
facts which would form a basis for any such claim.
(gg) Neither the Company, nor to the Company's knowledge, any trustee,
officer, agent, employee or other person associated with or acting on
behalf of the Company, has used any trust funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from trust funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment. No funds of the Company have
been set aside to be used for any payment in violation of any law.
(hh) The Company and its Subsidiaries have good and marketable title to all
personal property owned by them, free and clear of all encumbrances and
defects; and all personal property held under lease by the Company or any
Subsidiary are held by it under valid, subsisting and enforceable leases,
in each case, with such exceptions as do not have a Material Adverse
Effect.
(ii) No material relationship, direct or indirect, exists between or among
the Company on the one hand, and the trustees, officers, or shareholders of
the Company on the other hand, which is required to be described in the
Prospectus and which is not so described.
(jj) The statistical and market-related data included in the Prospectus and
the Registration Statement, if any, are based on or derived from sources
that the Company believes to be reliable and accurate.
17
(kk) The Company is organized in conformity with the requirements for
qualification as a real estate investment trust under the Code, and the
Company's method of operation will enable it to meet the requirements for
taxation as a real estate investment trust under the Code. The Operating
Partnership and Brierbrook Partners, L.L.C. will be treated as partnerships
for federal income tax purposes and not as a corporation or association
taxable as a corporation. Hospital Affiliates Development Corp. ("HADC") is
organized and is owned in a manner that meets the requirements for
qualification as a taxable REIT subsidiary under the Code, and HADC's
method of operation will enable it to meet the requirements for taxation as
a taxable REIT subsidiary under the Code.
Any certificate signed by any officer of the Company on behalf of the Company,
or by an officer on behalf of the Operating Partnership and delivered to the
Underwriters or to counsel for the Underwriters shall be deemed a representation
and warranty by such entity to the Underwriters as to the matters covered
thereby.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless the Underwriters and each other person, if
any, who controls the Underwriters within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Disclosure Package, the Prospectus, or any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon
and in conformity with the information relating to any Underwriter
furnished in writing to the Company by or on behalf of any Underwriters
expressly for use in connection therewith as provided in Section 12 hereof.
The foregoing indemnity agreement shall be in addition to any liability
which the Company or the Operating Partnership may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Underwriters or any person controlling the Underwriters in respect of which
indemnity may be sought against the Company or the Operating Partnership,
such Underwriter or such controlling person shall promptly notify the
Company or the Operating Partnership, but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) above. The
Company or the Operating Partnership shall assume the defense thereof,
including the employment of counsel and payment of all reasonable fees and
expenses.
18
The Underwriters or any such controlling person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Underwriters or such controlling
person unless the Company or the Operating Partnership have agreed in
writing to pay such fees and expenses, the Company or the Operating
Partnership have failed to assume the defense and employ counsel, or the
named parties to any such action, suit or proceeding (including any
impleaded parties) include both the Underwriters or such controlling person
and the Company or the Operating Partnership and the Underwriters or such
controlling person shall have been advised by its counsel that
representation of such indemnified party and the Company or the Operating
Partnership by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by
the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the Company or the Operating
Partnership shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company or the Operating
Partnership shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits
or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel), at any time for all such Underwriters and all controlling persons
not having actual or potential differing interests with the Underwriters or
among themselves, which firm shall be designated in writing by Xxxxxx X.
Xxxxx & Co. Incorporated, and that all such fees and expenses shall be
reimbursed as they are incurred. The Company or the Operating Partnership
shall not be liable for any settlement of any such action, suit or
proceeding effected without its written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Company or the Operating Partnership
agree to indemnify and hold harmless any Underwriter, to the extent
provided in the preceding paragraph, and any such controlling person from
and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) The Underwriters agree to indemnify and hold harmless the Company, the
Operating Partnership, their respective trustees and officers who sign the
Registration Statement, and any person who controls the Company or the
Operating Partnership within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Operating Partnership to the
Underwriters, but only with respect to information furnished in writing by
or on behalf of the Underwriters expressly for use in the Registration
Statement, the Disclosure Package or the Prospectus, or any amendment or
supplement thereto as provided in Section 12 hereof. If any action, suit or
proceeding shall be brought against the Company, the Operating Partnership
or any of their respective trustees, any such officer, or any such
controlling person based on the Registration Statement, the Disclosure
Package or the Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against the Underwriters pursuant
to this paragraph (c), the Underwriters shall have the rights and duties
given to the Company and the Operating Partnership by paragraph (b) above
(except that if the Company and the Operating
19
Partnership shall have assumed the defense thereof the Underwriters shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the Underwriters' expense), and the Company, the
Operating Partnership or their respective trustees, any such officer, and
any such controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise
have.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then
an indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by
the Company and the Operating Partnership on the one hand and the
Underwriters on the other hand from the offering of the Shares, or if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Operating Partnership on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Operating Partnership on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters bear to the price to public of the
Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Operating Partnership
on the one hand and the Underwriters on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Operating Partnership on the 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.
(e) The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section
7 were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Shares purchased by such Underwriter
hereunder. No person guilty of
20
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company, the Operating Partnership
and any Underwriter set forth in this Agreement shall remain operative and
in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, the Operating Partnership, their respective trustees or officers,
or any person controlling the Company or the Operating Partnership,
acceptance of any Shares and payment hereunder, and any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company or the Operating Partnership, their
respective trustees or officers, or any person controlling the Company or
the Operating Partnership, shall be entitled to the benefits of the
indemnity, contribution, and reimbursement agreements contained in this
Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligation of the Underwriters
to purchase the Shares hereunder is subject to the following conditions:
(a) 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, such
post-effective amendment shall have become effective not later than 5:30
P.M., New York City time, on the date hereof, or at such later date and
time as shall be consented to in writing by the Underwriters, and all
filings, if any, required by Rule 424 under the Act shall have been timely
made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement, the Disclosure Package, the Prospectus or otherwise) shall have
been complied with to the Underwriters' satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of
21
the Company and its Subsidiaries taken as a whole not contemplated by the
Disclosure Package or the Prospectus, which in the Underwriters' reasonable
opinion would materially, adversely affect the market for the Shares, or
any event or development relating to or involving the Company or any of its
Subsidiaries or any officer or trustee of the Company which makes any
material statement made in the Disclosure Package and the Prospectus untrue
or which, in the reasonable opinion of the Company and its counsel or the
Underwriters and their counsel, requires the making of any addition to or
change in the Disclosure Package or the Prospectus in order to state a
material fact required by the Act or the Exchange Act to be stated therein
or necessary in order to make the statements therein not misleading, if
amending or supplementing the Disclosure Package and the Prospectus to
reflect such event or development would, in the Underwriters' reasonable
opinion materially adversely affect the market for the Shares.
(c) The Underwriters shall have received on the Closing Date and the Date
of Delivery, as applicable, the opinions and the disclosure letter from
Hunton & Xxxxxxxx LLP, counsel for the Company and the Operating
Partnership, dated the Closing Date and the Date of Delivery, as
applicable, and addressed to the Underwriters substantially to the effect
as set forth in Schedule B-1, Schedule B-2 and Schedule B-3 hereto.
(d) The Underwriters shall have received on the Closing Date and the Date
of Delivery, as applicable, an opinion of Bass, Xxxxx & Xxxx PLC, counsel
for the Underwriters, dated the Closing Date and the Date of Delivery, as
applicable, and addressed to the Underwriters with respect to such matters
as the Underwriters may reasonably require; and the Company and the
Operating Partnership shall have furnished to such counsel such documents
as they reasonably request for the purposes of enabling them to review or
pass on the matters referred to in this Section and in order to evidence
the accuracy, completeness and satisfaction of the representations,
warranties and conditions herein contained.
(e) The Underwriters shall have received on the Closing Date and the Date
of Delivery, as applicable, a letter addressed to the Underwriters
substantially in the form of Schedule D hereto from Xxxx X. Klipsch and
Xxxxxxxxx X. Xxxxxx.
(f) The Underwriters shall have received letters addressed to the
Underwriters and dated the date hereof, the Closing Date and any Date of
Delivery, as applicable from KPMG LLP, the independent registered public
accounting firm, substantially in the forms heretofore approved by the
Underwriters.
(g) The Company and the Operating Partnership shall have furnished to the
Underwriters a certificate, signed by the Chief Executive Officer and the
Chief Financial Officer of the Company (and appropriate officer of the
Operating Partnership), dated the Closing Date and any Date of Delivery, as
applicable, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Disclosure Package, the
Prospectus, and any supplements thereto and this Agreement and that:
(i) since the Effective Date, there has occurred no event required to
be set forth in an amendment or supplement to the Registration
Statement, the
22
Disclosure Package or the Prospectus which has not been so set forth;
there has been no Issuer Free Writing Prospectus required to be filed
under Rule 433(d) of the Act that has not been so filed; and there has
been no document required to be filed under the Exchange Act that upon
such filing would be deemed to be incorporated by reference into the
Disclosure Package or the Prospectus that has not been so filed;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company, threatened
by the Commission at or prior to the Closing Date (or any Date of
Delivery, as applicable); and
(iii) all representations and warranties made in the Agreement by the
Company and the Operating Partnership are true and correct at such
Closing Date (and any Date of Delivery, as applicable), with the same
effect as if made on and as of such date, and all agreements herein to
be performed or complied with by the Company on or prior to such
Closing Date (or any Date of Delivery, as applicable) have been duly
performed and complied with by the Company;
(iv) neither the Company nor any of the Subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in each of the Disclosure Package and/or the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree; and
(v) except as disclosed in each of the Disclosure Package and/or the
Prospectus, subsequent to the respective dates as of which information
is given in the Registration Statement, neither the Company nor any of
its Subsidiaries has incurred any liabilities or obligations, direct
or contingent, other than in the ordinary course of business, or
entered into any transactions not in the ordinary course of business,
which in either case are material to the Company and its Subsidiaries,
taken as a whole; and there has not been any change in the capital
stock or material increase in the short term debt or long term debt of
the Company and its Subsidiaries taken as a whole, or any material
adverse change in the condition (financial or otherwise), results of
operations or cash flow of the Company and its Subsidiaries taken as a
whole; and there has been no dividend or distribution of any kind,
paid or made by the Company on any class of its capital stock.
(h) The Company shall not have failed at or prior to the Closing Date (and
any Date of Delivery, as applicable) to have performed or complied with any
of its agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date (and any Date of
Delivery, as applicable).
23
(i) The Company shall have furnished or caused to be furnished to the
Underwriters such further certificates and documents as the Underwriters
shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form
and substance to the Underwriters and the Underwriters' counsel in the
Underwriters' reasonable discretion. Any certificate or document signed by
any officer of the Company or the Company as general partner of the
Operating Partnership and delivered to the Underwriters or to counsel for
the Underwriters, shall be deemed a representation and warranty by the
Company or the Operating Partnership, as applicable, to the Underwriters as
to the statements made therein.
9. EXPENSES. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus, and each amendment or
supplement to any of them; the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Prospectus, and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the offering and
sale of the Shares; the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes in connection
with the original issuance and sale of the Shares; the listing of the Shares on
the NYSE; the registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(a)(x); the transportation and other expenses incurred by or on behalf
of the Company's representatives in connection with presentations to prospective
purchasers of the Shares; and the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and special counsel) for
the Company.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto; or 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, when notification of the effectiveness of
or such post-effective amendment has been released by the Commission. Until such
time as this Agreement shall have become effective, it may be terminated by the
Company, by notifying the Underwriters, or by the Underwriters by notifying the
Company. Any notice under this Section 10 may be given by e-mail or facsimile
but shall be subsequently confirmed within 24 hours by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to termination in
the Underwriters' absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date, trading in the Company's Common Stock shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on the
NYSE, a banking moratorium shall have been declared either by Federal or New
York State authorities or there shall have occurred any outbreak or escalation
of
24
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on the financial markets is such as
to make it, in the Underwriters' reasonable judgment, impracticable or
inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Disclosure Package and the Prospectus (exclusive of any
supplement thereto). Notice of such termination may be given to the Company by
e-mail or facsimile and shall be subsequently confirmed within 24 hours by
letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth in (i)
the list of Underwriters and their respective participation in the sale of the
Shares set forth in the table following the first paragraph under the caption
"Underwriting" in the Prospectus Supplement, (ii) the third, eighth, ninth,
tenth and thirteenth paragraphs under the caption "Underwriting" in the
Prospectus Supplement, (iii) the first sentence in the seventh paragraph under
the caption "Underwriting" in the Prospectus Supplement, and (iv) the last
paragraph on the cover page of the Prospectus Supplement, constitute the only
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 6(a) and 7 hereof.
13. NO FIDUCIARY OBLIGATION. The Company acknowledges and agrees that the
Underwriters have acted, and are acting, solely in the capacity of an
arm's-length contractual counterparty to the Company with respect to the
offering of the Shares contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person. Additionally, the
Underwriters have not advised, and are not advising, the Company or any other
person as to any legal, tax, investment, accounting or regulatory matter in any
jurisdiction with respect to the transactions contemplated hereby. The Company
shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by
the Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions has been and will be performed solely for
the benefit of the Underwriters and has not been and shall not be on behalf of
the Company or any other person. It is understood that the offering price was
arrived at through arm's-length negotiations between the Underwriters and the
Company, and that such price was not set or otherwise determined as a result of
expert advice rendered to the Company by the Underwriters. The Company
acknowledges and agrees that the Underwriters are acting as independent
contractors, and any duties of the Underwriters arising out of this Agreement
and the transactions completed hereby shall be contractual in nature and
expressly set forth herein. Notwithstanding anything in this Underwriting
Agreement to the contrary, the Company acknowledges that the Underwriters may
have financial interests in the success of the offering contemplated hereby that
are not limited to the difference between the price to the public and the
purchase price paid to the Company by the Underwriters for the Shares.
14. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and delivered, if to the Representative, will be mailed, delivered or
telefaxed to Xxxxxx X. Xxxxx & Co. Incorporated (fax no.: 000-000-0000) and
confirmed to it at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000,
Attention: General Counsel; or, if sent to the Company or the Operating
Partnership, will be mailed, delivered or telefaxed to Windrose Medical
Properties Trust (fax no.:
25
317-860-9128) and confirmed to it at Windrose Medical Properties Trust, 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxxx X.
Xxxxxx, President (with a copy sent in the same manner to Hunton & Xxxxxxxx LLP,
Riverfront Plaza, East Tower, 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Esq.).
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company and the Operating Partnership, their respective
trustees and officers, and the other controlling persons referred to in Section
7 hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. This Agreement may be executed by any
one or more of the parties hereto by facsimile which shall be effective as
delivery of a manually executed counterpart hereof. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
26
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Operating Partnership and the Underwriters.
Very truly yours,
WINDROSE MEDICAL PROPERTIES TRUST
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President, Chief Operating Officer and Treasurer
WINDROSE MEDICAL PROPERTIES, L.P.
By: Windrose Medical Properties Trust, General Partner
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President, Chief Operating Officer and Treasurer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
By: Xxxxxx X. Xxxxx & Co. Incorporated
(For itself and the other Underwriters named
in Schedule A to the foregoing Agreement.)
By: /s/ Xxxx Xxxxxx, Jr.
---------------------------------------
Name: Xxxx Xxxxxx, Jr.
Title: Vice President
27
SCHEDULE A
UNDERWRITERS NUMBER OF SHARES
------------ ----------------
Xxxxxx X. Xxxxx & Co. Incorporated 1,380,000
Xxxxxxx Xxxxx & Associates, Inc. 920,000
---------
TOTAL 2,300,000
