EXHIBIT 1.1
WINDROSE MEDICAL PROPERTIES TRUST
1,500,000 Common Shares
Par Value $.01 per Share
UNDERWRITING AGREEMENT
September 27, 2004
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxx, Xxxxxxxx & Company, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
As Representatives of the several Underwriters,
c/o Xxxxxx X. Xxxxx & Co. Incorporated
Regus Business Center
Tysons Galleria
0000 Xxxxxx Xxxx., 0xx Xxxxx
XxXxxx, XX 00000
Ladies and Gentlemen:
Windrose Medical Properties Trust, a Maryland real estate investment
trust (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, 1,500,000 shares of the Company's common shares of
beneficial interest, $0.01 par value ("Common Shares"), (said shares to be
issued and sold by the Company being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriters an option
to purchase up to 225,000 additional Common Shares to cover over-allotments (the
"Option Securities;" the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). Capitalized terms not
otherwise defined herein are defined in Section 16 hereof. To the extent there
are no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. The Company is the general partner of Windrose Medical
Properties, L.P. (the "Operating Partnership"), a Virginia limited partnership
that serves as the Company's primary operating partnership subsidiary.
1. Representations and Warranties. The Company and the Operating
Partnership jointly and severally represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) The Company has filed with the Commission pursuant to the
Act and the rules and regulations promulgated under the Act a
registration statement on Form S-3 (file number 333-112183), which
contains a form of prospectus (the "Base Prospectus")
to be used in connection with the public offering and sale of certain
securities to be issued from time to time by the Company (the "Shelf
Registered Securities"), including the Securities. The Company has
prepared and will file with the Commission in accordance with Rule
424(b) a final prospectus supplement (the "Prospectus Supplement")
supplementing the Base Prospectus in connection with the offer and sale
of the Securities. Such registration statement as amended, including
the exhibits and schedules thereto, at the time it became effective,
including the information, if any, deemed to be part of the
registration statement at the time of its effectiveness, is hereinafter
referred to as the "Registration Statement." The Base Prospectus, as
supplemented by the Prospectus Supplement are hereinafter referred to
collectively as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the effective date of the Registration Statement or the
date of such Base Prospectus or Prospectus Supplement, as the case may
be, and any reference to "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include any
documents filed after such date under the Exchange Act that are deemed
to be incorporated by reference therein.
(b) The Company meets the requirements for use of Form S-3
under the Act. The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act, and no
proceedings for any such purpose, have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
(c) At the respective times the Registration Statement, and
any post-effective amendment thereto (filed before the Closing Date)
became effective and at the Closing Date (and, if any Option Securities
are purchased, at the Date of Delivery (defined herein), the
Registration Statement, and all amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the Act and did 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 to make the statements therein not misleading.
Neither the Prospectus nor any amendment or supplement thereto, at the
time the Prospectus or any such amendment or supplement was issued and
on the Closing Date (and, if any Option Securities are purchased, at
the Date of Delivery), included or will include an untrue statement of
a material fact or omitted or will 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company by or on behalf of any Underwriter for use in
the Registration Statement or Prospectus and specifically identified in
writing as such by the Underwriters.
(d) All disclosures contained in the Registration Statement or
the Prospectus regarding "non-GAAP financial measures" (as such term is
defined by the rules and
2
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.
(e) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and none of such documents
contained any untrue statement of a material fact or omitted 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; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(f) 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"). Except with respect to the Company's
subsidiaries (individually a "Subsidiary" and collectively the
"Subsidiaries"), 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.
(g) 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. 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.
(h) The authorized, issued and outstanding shares of
beneficial interest of the Company are as set forth in the Prospectus
under the caption "Capitalization." All the issued and outstanding
Common Shares of the Company, including the Securities 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
board of trustees will be,
3
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 shares of beneficial interest 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 Securities 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 Securities 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 and Prospectus, (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 capital stock 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 partnership interest issued
to the Company and certain other persons that are redeemable at the
option of the holder thereof for cash, or, at the Company's option, for
Common Shares on a one-for-one basis ("Units"). 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.
(i) 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 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.
(j) 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 Securities
as provided herein. This Agreement has been duly authorized, executed
and delivered by the Company.
(k) The Operating Partnership has the full legal right, power
and authority to enter into this Agreement and to consummate the
transactions contemplated herein. This Agreement has been duly
authorized, executed and delivered by the Operating Partnership.
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(l) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
(m) The Company is not and, after giving effect to the
offering and sale of the Securities 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.
(n) 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 Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(o) Neither the issue and sale of the Securities 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 Amended and Restated Declaration of
Trust (the "Declaration of Trust") or bylaws of the Company, the
Certificate of Limited Partnership or Amended and Restated Agreement of
Limited Partnership, as further amended and/or restated (the
"Partnership Agreement") of the Operating Partnership or any of the
applicable organizational documents of any Subsidiary, (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.
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(q) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company and its consolidated subsidiaries as of the
dates and for the periods indicated, comply as to form in all material
respects with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The amounts in the
Prospectus incorporated by reference from the Company's Annual Report
on Form 10-K for the year
5
ended December 31, 2003 under the captions "Financial Statements and
Supplementary Data" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" are accurately computed,
fairly present the information shown therein and have been determined
on a basis consistent with the financial statements included in the
Registration Statement. 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.
(r) 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 (exclusive of any supplement thereto).
(s) 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 (ii) and (iii), such violations or defaults as would not
have a Material Adverse Effect.
(t) KPMG, LLP, who have certified certain financial statements
of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements
and schedules included in the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(u) 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 Securities that have not been or will not
be paid.
6
(v) 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 (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 (exclusive of any
supplement thereto).
(w) 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 (exclusive of any supplement thereto).
(x) The Company and each of its Subsidiaries 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; 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; the Company and its Subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and 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
(exclusive of any supplement thereto).
(y) 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 (exclusive of any supplement thereto).
(z) The Company and each of its 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 and to
maintain asset
7
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (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.
(aa) 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 Securities.
(bb) 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 (exclusive of
any supplement thereto). 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.
(cc) 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 (exclusive of any supplement thereto).
(dd) 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
respect to any "pension plan" (as defined in Section 3(2) ERISA) for
which the Company or any Subsidiary would have any liability; the
Company and its 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 Subsidiary would have any
8
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.
(ee) 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 Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Sarbanes Oxley
Act").
(ff) The Company or its Subsidiaries have good and marketable
title in fee simple to 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 do not, individually or in the aggregate, materially affect the
value of such Property and do not interfere in any material respect
with the use made and proposed to be made of such Property by the
Company or any Subsidiary. Neither the Company nor any Subsidiary owns
or leases any real property, except as described in the Registration
Statement or the Prospectus. Except as disclosed in the Prospectus, no
person has an option or right of first refusal to purchase all or part
of any of the Properties or any interest therein. 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. 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.
(gg) 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.
(hh) 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
9
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.
(ii) 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.
(jj) The Securities have been approved for listing on The New
York Stock Exchange (the "NYSE") subject to official notice of
issuance.
(kk) 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.
(ll) No 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.
(mm) 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.
(nn) 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
10
investment trust under the Code. The Operating Partnership and
Brierbrook Partners, L.L.C. will be treated as partnerships for federal
income 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 and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of
$12.128 per share, the amount of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally and
not jointly, up to 225,000 Option Securities in the aggregate at the
same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities 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 or
telegraphic notice by the Representatives to the Company setting forth
the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the Date of Delivery. The
number of Option Securities to be purchased by each Underwriter shall
be the same percentage of the total number of shares of the Option
Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised before the Business Day prior to the Closing
Date) shall be made at 10:00 a.m., Eastern time, on September 30, 2004, or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives 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
11
Company. Delivery of the Underwritten Securities and the Option Securities shall
be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
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
Securities (at the expense of the Company) to the Representatives, at 0000
Xxxxxx Xxxx., 0xx Xxxxx, XxXxxx, XX 00000, on the date (the "Date of Delivery")
specified by the Representatives (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
Representatives 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 Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the Date of Delivery
for the Option Securities, and the obligation of the Underwriters to purchase
the Option Securities 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 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for
your review prior to filing. The Company will promptly advise the
Representatives (1) when a Prospectus Supplement shall have been filed
with the Commission pursuant to Rule 424(b), (2) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (3)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Prospectus or for
any additional information, (4) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any 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, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the rules thereunder, the Company
promptly will (1) notify the Representatives of any such event,
12
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such
compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, upon request, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter, upon request, a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of
the Base Prospectus and any Prospectus Supplement as the
Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of
Xxxxxx X. Xxxxx & Co. Incorporated, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company), directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other Common
Shares or any securities convertible into, or exercisable, or
exchangeable for, Common Shares; or publicly announce an intention to
effect any such transaction, for a period of 45 days after the date of
the Prospectus, provided, however, that the Company may issue and sell
Common Shares, or securities exercisable or exchangeable for Common
Shares, pursuant to the Company's 2002 Stock Incentive Plan, pursuant
to the Company's dividend reinvestment plan in effect at the Execution
Time, upon redemption of the Units, upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time, and in
connection with the acquisition by the Company of assets.
(g) The Company will comply in all material respects with all
applicable securities and other applicable laws, rules and regulations,
including, without limitation, the Xxxxxxxx-Xxxxx Act, and to use its
best efforts to cause the Company's trustees and
13
officers, in their capacities as such, to comply in all material
respects with such laws, rules and regulations, including, without
limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Company will not take, 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 Securities.
(i) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), Prospectus Supplement, the
Base Prospectus, and each amendment or supplement to any of them; (ii)
the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the Registration Statement, Prospectus Supplement, the Base
Prospectus, and all amendments or supplements to any of them, as may,
in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum
and all other agreements or documents to which the Company is a party
printed (or reproduced) and delivered in connection with the offering
of the Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Securities on the NYSE; (vi) any
required registration or qualification of the Securities for offer and
sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with the National Association of
Securities Dealers, Inc. ("NASD") (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating
to such filings); (viii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the
Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
(j) The Company will use the net proceeds received by it from
the sale of Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds."
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any Date of Delivery pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
14
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) the Company shall have requested and caused Hunton &
Xxxxxxxx LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, in the form attached hereto as Exhibit A, and
their opinion, dated the Closing Date and addressed to the
Representatives, in form reasonably satisfactory to the
Representatives, that the Company is qualified to be taxed as a REIT
pursuant to sections 856 through 860 of the Code for its taxable year
ended December 31, 2003 and that the Company's current organization and
proposed method of operation will enable it to continue to qualify as a
REIT for its taxable year ending December 31, 2004 and in the future.
(c) The Representatives shall have received from Bass, Xxxxx &
Xxxx PLC, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to
the issuance and sale of the Securities, the Registration Statement,
the Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements 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 on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company and the Operating
Partnership have complied with all the agreements and
satisfied all the conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) the Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect
on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
Subsidiaries taken as a
15
whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, (i) confirming that they are independent accountants
within the meaning of the Act and the applicable rules and regulations
adopted by the Commission thereunder (ii) stating that, in their
opinion, the financial statements and any supplementary financial
information and schedules included in the Registration Statement and
covered by their opinion therein comply as to form in all material
respects with the applicable accounting requirements of the Act and
applicable Staff Accounting Bulletins and other official pronouncements
of the Commission, and (iii) containing such other statements and
information of the type ordinarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
financial and other information contained in the Registration
Statement, including that they have performed a review of the unaudited
interim financial information of the Company for the six-month period
ended June 30, 2004, and as of June 30, 2004, in accordance with
Statement on Auditing Standards No. 100.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
Subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been provided to the Representatives.
16
(i) The NASD, upon review of the terms of the public offering
of the Securities, shall not have objected to such offering, such terms
or the Underwriters participation in the same.
(j) The Company shall have furnished to the Representatives a
letter substantially in the form of Exhibit B hereto from Xxxx X.
Klipsch and Xxxxxxxxx X. Xxxxxx.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Bass, Xxxxx & Xxxx PLC, counsel for the Underwriters,
at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Operating
Partnership to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Xxxxxx X. Xxxxx & Co. Incorporated
on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company and the Operating Partnership jointly and
severally agree to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or in the Prospectus Supplement or the Base Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action;
17
provided, however, that the Company and the Operating Partnership will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the
Company and the Operating Partnership may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company and the Operating Partnership,
each trustee of the Company, each officer who signs the Registration
Statement, and each person who controls the Company and the Operating
Partnership within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the
Operating Partnership to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company and
Operating Partnership acknowledge that the statements set forth in (i)
the list of Underwriters and their respective participation in the sale
of the Securities set forth in the first paragraph under the caption
"Underwriting" and (ii) the third, eighth, ninth and thirteenth
paragraphs under the caption "Underwriting" in the Prospectus
Supplement and the Base Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in the Prospectus Supplement or the Base Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) 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) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of,
18
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other parties
indemnified pursuant to this Agreement which are different from or
additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the
Operating Partnership and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Company, the Operating Partnership and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Operating
Partnership on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Operating Partnership and
the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Operating Partnership on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the
Company and the Operating Partnership shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company or by the Operating Partnership on
the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not
take account of
19
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of 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. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of
an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or the Operating
Partnership within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration
Statement and each trustee of the Company shall have the same rights to
contribution as the Company and the Operating Partnership, subject in
each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the nondefaulting Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate number of Common Shares set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company or the Operating Partnership. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Shares 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, (ii) a banking moratorium shall have been declared either by federal or
New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
20
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and the Operating Partnership or the officers of the Company and of the
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 or the Company, the Operating Partnership or any of the officers,
trustees, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or
telefaxed to Xxxxxx X. Xxxxx & Co. Incorporated (fax no.: 000-000-0000) and
confirmed to the General Counsel, Xxxxxx X. Xxxxx & Co. Incorporated, at Regus
Business Center, Tysons Galleria, 0000 Xxxxxx Xxxx., 0xx Xxxxx, XxXxxx, XX
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.: 000-000-0000) 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, Attention: Xxxxx X. Xxxxxx, Esq.).
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will 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.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or 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.
"Commission" shall mean the Securities and Exchange Commission.
21
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Rule 424" and "Rule 462" refer to such rules under the Act.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the Registration Statement.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Operating Partnership and the several Underwriters.
Very truly yours,
WINDROSE MEDICAL PROPERTIES TRUST
By:
/s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President & COO
WINDROSE MEDICAL PROPERTIES, L.P.
By: Windrose Medical Properties Trust,
General Partner
By:
/s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXX, XXXXX XXXXX, INCORPORATED
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
By: Xxxxxx X. Xxxxx & Co. Incorporated
By:
/s/ Xxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Managing Director
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Number of Underwritten Securities
Underwriters to be Purchased
------------ ---------------
Xxxxxx X. Xxxxx & Co. Incorporated 600,000
Xxxxxx, Xxxxx Xxxxx, Incorporated 375,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 375,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 150,000
Total 1,500,000
