[Exhibit 1.1]
WINDROSE MEDICAL PROPERTIES TRUST
6,700,000 COMMON SHARES
($0.01 PAR VALUE PER SHARE)
UNDERWRITING AGREEMENT
August ____, 2002
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
SWS Group, Inc.
c/o Ferris, Xxxxx Xxxxx Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxx Xxxxx
Xxxxxxxxxx, 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 (collectively, the "Underwriters") an aggregate of 6,700,000 (the
"Firm Shares") of the Company's common shares of beneficial interest, $0.01 par
value per share (the "Common Shares"). All of the Firm Shares will be sold by
the Company. The Firm Shares are to be sold to each Underwriter, acting
severally and not jointly, in such amounts as are set forth in Schedule I
opposite the name of such Underwriter.
Solely for the purpose of covering over-allotments in the sale of the
Firm Shares, the Company grants to the Underwriters the right to purchase up to
an additional 1,005,000 Common Shares (the "Option Shares"), which option shall
be exercisable in the manner, and such Option Shares shall be sold in the
denominations, set forth in Section 3(b) below. The Firm Shares and Option
Shares are herein sometimes referred to as the "Shares."
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. The Operating Partnership
has entered into binding contracts to purchase the medical properties listed on
Schedule II hereto (which, together with the Urology Center of the South
described below, are hereinafter called the "Properties"). Moreover, the
Operating Partnership has entered into agreements to acquire 90% of the Class A
limited liability company interests and 100% of the Class B limited liability
company interests in Brierbrook Partners, LLC ("Brierbrook"), which owns the
Urology Center of the South in Germantown, Tennessee, and 100% of the capital
stock of Hospital Affiliates Development Corporation ("HADC") in exchange for
cash and units of partnership interest in the Operating Partnership ("Units").
The Operating Partnership, Brierbrook and HADC are sometimes hereinafter
referred to as "Subsidiaries."
Section 1. Representations and Warranties of the Company and Operating
Partnership. The Company and the Operating Partnership jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-11
(Registration No. 333-89186) with respect to the Shares, including a preliminary
form of prospectus subject to completion, in conformity with the requirements of
the Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations of the Commission thereunder (all such rules and regulations,
including Regulation S-X to the extent applicable, referred to as the "1933 Act
Regulations"); and such amendments to such registration statement as may have
been required, if any, prior to the date hereof have been filed with the
Commission, and such amendments have been similarly prepared. Copies of such
registration statement and amendment or amendments and of each related
preliminary prospectus, and the exhibits, financial statements and schedules, as
finally amended and revised, have been delivered to you. The Company has
prepared in the same manner, and proposes so to file with the Commission, one of
the following: (i) prior to effectiveness of such registration statement, a
further amendment thereto, including the form of final prospectus, (ii) if the
Company does not rely on Rule 434 of the 1933 Act Regulations, a final
prospectus in accordance with Rules 430A and 424(b) of the 1933 Act Regulations,
or (iii) if the Company relies on Rule 434 of the 1933 Act Regulations, a term
sheet relating to the Shares that shall identify the preliminary prospectus that
it supplements containing such information as is required or permitted by Rules
434, 430A and 424(b) of the 1933 Act Regulations. The Company also may file a
related registration statement with the Commission pursuant to Rule 462(b) of
the 1933 Act Regulations for the purpose of registering additional Common
Shares, which registration statement will be effective upon filing with the
Commission. As filed, such amendment, any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations and any term sheet and form of final
prospectus, or such final prospectus, shall include all Rule 430A Information
(as hereinafter defined) and, except to the extent that you shall agree in
writing to a modification, shall be in all respects in the form furnished to you
prior to the date and time that this Agreement was executed and delivered by the
parties hereto, or, to the extent not completed at such date and time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest preliminary prospectus) as the Company shall have
previously advised you in writing would be included or made therein.
The term "Registration Statement" as used in this Agreement shall mean
such registration statement at the time such registration statement becomes
effective and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Time (as hereinafter defined), shall also mean
such registration statement as so amended; provided, however, that such term
shall also include all Rule 430A Information contained in any Prospectus (as
hereinafter defined) and any Term Sheet (as hereinafter defined) and deemed to
be included in such registration statement at the time such registration
statement becomes effective as provided by Rule 430A of the 1933 Act
Regulations. The term "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in the preceding paragraph and any preliminary prospectus
included in the Registration Statement at the time it becomes effective that
omits Rule 430A Information. The term "Prospectus" as used in this Agreement
shall mean (a) if the Company relies on Rule 434 of the 1933 Act Regulations,
the Term Sheet relating to the Shares that is first filed pursuant to Rule
424(b)(7) of the 1933 Act Regulations, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements, or (b) if the Company does
not rely on Rule 434 of the 1933 Act Regulations, the prospectus relating to the
Shares in the form in which it is first filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations or, if no filing pursuant to Rule 424(b)
of the 1933 Act Regulations is required, shall mean the form of final prospectus
included in the Registration Statement at the time such Registration Statement
becomes effective. The term "Rule 430A Information" means information with
respect to the Shares and the offering thereof permitted pursuant to Rule 430A
of the 1933 Act Regulations to be omitted from the Registration Statement when
it becomes effective. The term "462(b) Registration Statement" means any
registration statement filed with the Commission pursuant to Rule 462(b) of the
1933 Act Regulations (including the Registration Statement and any Preliminary
Prospectus or Prospectus incorporated therein at the time such registration
statement becomes effective). The term "Term Sheet" means any term sheet that
satisfies the requirements of Rule 434 of the 1933 Act Regulations. Any
reference to the "date" of a Prospectus that includes a Term Sheet shall mean
the date of such Term Sheet.
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(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and no proceedings for that purpose
have been instituted or, to the knowledge of the Company, threatened by the
Commission or the state securities authority of any jurisdiction, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all respects
to the requirements of the 1933 Act and the 1933 Act Regulations and did 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;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter expressly for use in the
Registration Statement or any 462(b) Registration Statement.
(c) When the Registration Statement and any 462(b) Registration
Statement shall become effective, or any Term Sheet that is part of the
Prospectus is filed with the Commission pursuant to Rule 434, when the
Prospectus is first filed pursuant to Rule 424(b) of the 1933 Act Regulations,
when any amendment to the Registration Statement or any 462(b) Registration
Statement becomes effective, when any supplement to the Prospectus or Term Sheet
is filed with the Commission, and at each Date of Delivery (as hereinafter
defined in Section 3), (i) the Registration Statement, the 462(b) Registration
Statement, the Prospectus, the Term Sheet and all amendments thereof and
supplements thereto will conform in all respects with the requirements of the
1933 Act and the 1933 Act Regulations and (ii) neither the Registration
Statement, the 462(b) Registration Statement, the Prospectus, any Term Sheet nor
any amendment or supplement thereto, will contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter expressly for use in the Registration Statement or any
462(b) Registration Statement.
(d) The Company has been duly formed and is 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 (the "SDAT"), with all requisite trust power and authority to own,
lease and license its properties, and conduct its business as currently carried
on and described in the Prospectus. The Company has qualified to do business and
is in good standing as a foreign entity, 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 do so would not have a material adverse effect on the condition,
financial or otherwise, results of operations, cash flows or prospects of the
Company and its Subsidiaries considered as one enterprise (a "Material Adverse
Effect"). The Company does not own any interest in or control, directly or
indirectly, any corporation, association or other entity except as set forth in
the next paragraph.
(e) Upon completion of the offering of the Shares and the formation
transactions described in the Registration Statement (i) the Company will be the
general partner of the Operating Partnership and will own a 95.9% interest in
the Operating Partnership, (ii) the Operating Partnership will own 90% of the
Class A limited liability company interests and 100% of the Class B limited
liability company interests in Brierbrook, and (iii) the Operating Partnership
will own 100% of the issued and outstanding capital stock of HADC. 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 do so would not have a Material
Adverse Effect.
(f) 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 and constitutes the
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that the indemnification and
contribution provisions set forth in Section 9 of this Agreement may be limited
by applicable law or equitable principles, and except as enforceability may be
limited by bankruptcy, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally and rules of law governing
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specific performance, injunctive relief and other equitable remedies. The
capital stock, limited liability company interests or partnership interests, as
the case may be, of each Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable and, in the case of such interests
owned directly or indirectly by the Company, are free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. No such equity
interest in any Subsidiary was issued in violation of the preemptive or similar
right of any securityholder of such Subsidiary.
(g) 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 and constitutes the valid and binding
agreement of the Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, except to the extent that the
indemnification and contribution provisions set forth in Section 9 of this
Agreement may be limited by applicable law or equitable principles, and except
as enforceability may be limited by bankruptcy, reorganization, moratorium or
similar laws affecting enforceability of creditors' rights generally and rules
of law governing specific performance, injunctive relief and other equitable
remedies.
(h) Each consent, approval, authorization, order, designation or filing
by or with any governmental agency or body necessary for the valid
authorization, issuance, sale and delivery of the Shares, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, has been made or obtained by the Company or
the Operating Partnership, and is in full force and effect, except as may be
required under the 1933 Act, the 1933 Act Regulations or applicable state or
foreign securities laws. The issuance, sale and delivery of the Shares, the
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated by this Agreement, (i) will not result in a breach
or violation of any of the terms and provisions of, or constitute a default by
the Company under its Amended and Restated Declaration of Trust, as further
amended or restated (the "Declaration of Trust") or Bylaws or by the Operating
Partnership under its Certificate of Limited Partnership or Amended and Restated
Agreement of Limited Partnership, as further amended and/or restated (the
"Partnership Agreement") and (ii) will not result in a breach or violation of
any of the terms or provisions of, or constitute a default by the Company or any
Subsidiary, under, any provision of any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the Company or
any Subsidiary is a party or to which they or their properties is subject, or
(iii) will not result in a breach or violation of any statute, judgment, decree,
order, rule or regulation of any court or governmental agency or body applicable
to the Company or any Subsidiary or any of their properties, except, in each
case, for such breach or violation as would not have a Material Adverse Effect.
(i) 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 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 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 shares of beneficial interest prior to the
date hereof were at all relevant times duly registered under the 1933 Act or
were exempt from the registration requirements of the 1933 Act by reason of
Sections 3(b), 4(2) or 4(6) thereof and were duly registered or the subject of
an available exemption from the registration requirements of the applicable
state securities or blue sky laws. The Shares to be sold by the Company, when
issued and delivered by the Company and paid for pursuant to this Agreement,
will be validly issued, fully paid and non-assessable and will conform in all
respects to the description thereof contained in the Prospectus. No preemptive
rights of shareholders exist with respect to any of the Shares under the
Maryland REIT Law, the Declaration of Trust or the Bylaws. No person or entity
holds a right to require or participate in the registration under the 1933 Act
of the Shares. 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
and Prospectus, (A) 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,
(B) there is no 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, and (C) the
Company does not own, directly or indirectly, any capital stock or other equity
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securities of any other corporation or any ownership interest in any
partnership, limited liability company, joint venture, association or other
entity. 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.
(j) The balance sheet of the Company and the consolidated financial
statements of Windrose International, LLC's Development and Project Management
Businesses (the "Accounting Predecessor") (including all related notes and
schedules) included in the Registration Statement and the Prospectus present
fairly the financial position of the Company and the Accounting Predecessor as
of the respective dates indicated and the results of operations and cash flows
of the Accounting Predecessor for the periods specified, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (subject, in the case of unaudited financial
statements, to normal year-end adjustments) and in conformity with Regulation
S-X of the Commission. The statements of revenue in excess of certain expenses
of Park Medical Center and Partell Medical Center included in the Registration
Statement and Prospectus present fairly the revenue in excess of certain
expenses for the periods specified in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (subject in the case of unaudited financial statements, to normal
year-end adjustments), and in conformity with Regulation S-X of the Commission.
The supporting schedules included in the Registration Statement and the amounts
in the Prospectus under the captions "Prospectus Summary," "Selected Combined
Financial 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 and the
Prospectus. No other financial statements or schedules are required by Form S-11
or otherwise to be included in the Registration Statement, the Prospectus or any
Preliminary Prospectus.
The pro forma financial data set forth in the Registration
Statement and Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
(including, without limitation, Regulation S-X), the assumptions underlying the
pro forma adjustments are reasonable, and such adjustments have been properly
applied to the historical amounts in the compilation of such statements. All
other financial and statistical data included in the Registration Statement and
Prospectus present fairly and accurately the information stated therein and have
been prepared and compiled on a basis consistent with the financial statements
presented in the Registration Statement and Prospectus and the books and records
of the Company and its Subsidiaries.
(k) KPMG LLP, which has examined and is reporting upon certain of the
audited financial statements and schedules included in the Registration
Statement and the Prospectus, are, and were during the periods covered by their
reports included in the Registration Statement and the Prospectus, independent
public accountants with respect to the Company and its Subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(l) The Company has obtained, for the benefit of the Underwriters, from
each of the Company's trustees and executive officers named in the Registration
Statement, a written agreement conforming to the description under "Lockup
Agreement" in the "Underwriting section" of the Prospectus.
(m) The Company, each Subsidiary, and each Property has not sustained,
since June 30, 2002, any material loss or interference with its business or
operations from or as a result of fire, explosion, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or arbitration or court or governmental action, order or decree, otherwise than
as set forth in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been (i) any change in the capital stock, long-term debt, obligations under
capital leases or short-term borrowings of the Company and the Subsidiaries on a
consolidated basis; (ii) any event or development which could reasonably be seen
as having a Material Adverse Effect; (iii) any liability or obligation, direct
or contingent, incurred or undertaken by the Company or any Subsidiary, except
for liabilities or obligations incurred in the ordinary course of business or
which
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otherwise would not have a Material Adverse Effect; or (iv) any declaration or
payment of any dividend or distribution of any kind on or with respect to the
Company's shares of beneficial interest.
(n) The Company is not in violation of its Declaration of Trust or
Bylaws and no Subsidiary is in violation of its applicable organizational
documents (including, without limitation, partnership and limited liability
company agreements) and, as of the date hereof, no default exists, and no event
has occurred, nor state of facts exists, which, with notice or after the lapse
of time to cure or both, would constitute a default in the due performance and
observance of any obligation, agreement, covenant, consideration or condition
contained in any indenture, mortgage, deed of trust, loan agreement, note, lease
or other agreement or instrument to which the Company or any Subsidiary is a
party or by which it or any of its properties is subject, and no violation of
any law, order, rule, regulation, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign, has occurred or
exists, in any such case where the consequences of such violation or default
would have a Material Adverse Effect.
(o) Except as otherwise disclosed in the Prospectus, (i) neither the
Company nor any Subsidiary has authorized or conducted, or otherwise has
knowledge of the generation, transportation, storage, presence, use, treatment,
disposal, release or handling of (in an amount or of a type that has been or
must be reported to any governmental agency, violates any Environmental Law (as
hereinafter defined), or has required or could require remediation expenditures)
any hazardous substance, medical waste, asbestos, radon, polychlorinated
biphenyl ("PCBs"), petroleum product or waste (including crude oil or any
fraction thereof), natural gas, liquefied gas, synthetic gas or other material
defined, regulated, controlled or potentially subject to any remediation
requirement under any Environmental Law (collectively, "Hazardous Materials"),
on, in or under any Property, (ii) the Company and each Subsidiary, and, to the
knowledge of the Company and the Operating Partnership, the tenants occupying
each Property, are in compliance with all federal, state and local laws,
ordinances, rules, regulations and other governmental requirements relating to
pollution, control of chemicals, management of waste, discharges of materials
into the environment, health, safety, natural resources, and the environment
(collectively, "Environmental Laws"), and (iii) the Company and each Subsidiary,
and, to the knowledge of the Company and the Operating Partnership, the tenants
occupying each Property, are in compliance with, all licenses, permits,
registrations and government authorizations necessary to operate under all
applicable Environmental Laws, except in the case of clause (i) or (ii) where
such noncompliance would not have a Material Adverse Effect. Except as otherwise
disclosed in the Prospectus, the Company, the Subsidiaries, and, to the
knowledge of the Company and the Operating Partnership, the tenant occupying
each Property, have not received any written or oral notice from any
governmental entity or any other person, and, to the knowledge of the Company
and the Operating Partnership, there is no pending or threatened claim,
litigation or any administrative agency proceeding, that: (i) alleges a
violation of any Environmental Laws by the Company, any Subsidiary, or any such
Property owner or tenant; (ii) alleges that the Company, any Subsidiary, or any
such tenant is a liable party or a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. xx.xx. 9601, et seq., or any state superfund law; (iii) has resulted in
or could result in the attachment of an environmental lien on any real property
owned, leased or used by the Company, any Subsidiary, or any such Property owner
or tenant; or (iv) alleges the occurrence of contamination of any of such real
property, damage to natural resources, property damage, or personal injury based
on activities of the Company or any Subsidiary, or the activities of its
predecessors, if any, or third parties (whether at the real property or
elsewhere) involving Hazardous Materials, whether arising under the
Environmental Laws, common law principles, or other legal standards.
(p) The Company or its Subsidiaries will have, at the Closing Date,
good and marketable title in fee simple to each Property and the improvements
located thereon (except Park Medical Center and Partell Medical Center, which
will be acquired after the Closing Date), 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. The mortgages and deeds of trust encumbering the
Properties described in general in the Prospectus are not convertible and are
not cross-defaulted or cross-collateralized to any other Property. Neither the
Company nor any Subsidiary owns or leases any real property, except as described
in the Registration Statement or 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
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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 individually or in the aggregate materially affect the value of such
Property or interfere in any material respect with the use made and proposed to
be made of such Property by the Company or any Subsidiary. 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
individually or in the aggregate materially affect the value of such Property or
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 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.
(q) The Company does not hold any property under a ground lease or
other lease.
(r) Except as described in the Prospectus, there is not pending, nor to
the Company's and the Operating Partnership's knowledge threatened, any action,
suit, proceeding, inquiry or investigation, against the Company, any Subsidiary
or any of their respective officers, trustees or shareholders or to which the
Properties, assets or rights of the Company or its Subsidiaries are subject,
before or brought by any court or governmental agency or body or board of
arbitrators, which would, if adversely determined, have a Material Adverse
Effect, or which could prevent consummation of the transactions contemplated by
this Agreement.
(s) There are no contracts or other documents required by the 1933 Act
or the 1933 Act Regulations to be described in or incorporated by reference into
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which have not been accurately described in all material
respects in the Prospectus or incorporated or filed as required. The agreements
to which the Company or any Subsidiary is party, including but not limited to
leases between a Subsidiary and tenants at the Properties, which are described
in the Registration Statement and the Prospectus are valid and enforceable in
all material respects by the Company and/or its Subsidiary except as
enforceability may be limited by bankruptcy, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights generally and
rules of law governing specific performance, injunctive relief and other
equitable remedies, and, to the best of the Company's and the Operating
Partnership's knowledge, no party thereto is in breach or default under any of
such agreements except where such breach or default would not have a Material
Adverse Effect.
(t) The Company or a Subsidiary owns, possesses or has obtained all
permits, licenses, franchises, certificates, consents, orders, approvals and
other authorizations of governmental or regulatory authorities and other third
parties as are necessary to own or lease, its properties and to carry on its
businesses as described in the Registration Statement, except where a failure to
own, possess or obtain such permits, licenses, franchises, certificates,
consents, orders, approvals and other authorizations would not have a Material
Adverse Effect. Neither the Company nor the Operating Partnership has received
any notice relating to termination, revocation or modification of any such
license, permit, franchise, certificate, consent, order, approval or
authorization, which termination, revocation or modification would have a
Material Adverse Effect.
(u) 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
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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.
(v) The systems of internal accounting controls utilized by the Company
and its Subsidiaries are sufficient to meet the objectives of internal
accounting control insofar as those objectives pertain to the prevention or
detection of errors or irregularities in amounts that would be material in
relation to the financial statements and the financial information disclosed in
the Registration Statement and the Prospectus. 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.
(w) The Company and each Subsidiary have filed all federal, state,
local and foreign income and franchise tax returns and tax forms required to be
filed and are not in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, other than any
which the Company or such Subsidiary is contesting in good faith and as to which
adequate reserves have been provided. Such returns and forms are complete and
correct in all material respects. The Company and each Subsidiary have made all
payroll withholdings required to be made by them with respect to employees. The
charges, accruals and reserves on the books of the Company and each Subsidiary
in respect of any tax liability for any year not finally determined are adequate
to meet any assessments or reassessments for additional taxes. There have been
no tax deficiencies asserted and, to the Company's and the Operating
Partnership's knowledge, no tax deficiency might be reasonably asserted or
threatened against the Company or any Subsidiary that could individually or in
the aggregate have a Material Adverse Effect.
(x) The Company and its Subsidiaries maintain insurance (issued by
insurers of recognized financial responsibility) of the types and in the amounts
generally deemed adequate for their business and, to the Company's and the
Operating Partnership's knowledge, generally consistent with insurance coverage
maintained by similar companies in similar businesses, including, but not
limited to, insurance covering real and personal property owned or leased by the
Company and its Subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, and casualty and
liability insurance covering the Company's and its Subsidiaries' operations, all
of which insurance is in full force and effect.
(y) No labor problem exists with the Company's or any Subsidiary's
employees or, to the Company's and the Operating Partnership's knowledge, is
threatened or imminent, that would have a Material Adverse Effect.
(z) Neither the Company nor its officers, trustees, shareholders or
affiliates, have taken, and such parties will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in or constitute, the stabilization or manipulation of the price of the Shares
to facilitate the sale or resale of the Shares.
(aa) The Common Shares have been registered pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "1934 Act") and the
Shares have been approved for listing on The New York Stock Exchange (the
"NYSE") subject to official notice of issuance.
(bb) Except with respect to the engagement letter dated January 25,
2002 with Xxxxxx, Xxxxx Xxxxx, Incorporated, neither the Company nor any
Subsidiary has incurred any liability for a fee, commission or other
8
compensation on account of the employment of a broker or finder in connection
with the transactions contemplated by this Agreement other than as contemplated
hereby.
(cc) Neither the Company nor any Subsidiary is, nor will it become as a
result of the transactions contemplated hereby, nor does it intend to conduct
its business in a manner that could cause either of them to become, an
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(dd) Except as described in the Prospectus, the Company has not sold or
issued any Common Shares during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or
S of, the 1933 Act Regulations.
(ee) 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 is held by it under valid, subsisting and enforceable leases, in each
case, with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property by the Company or the Subsidiary.
(ff) 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.
(gg) The statistical and market-related data included in the Prospectus
and the Registration Statement are based on or derived from sources that the
Company believes to be reliable and accurate.
(hh) The Company is organized in conformity with the requirements for
qualification as a real estate investment trust under the Internal Revenue Code
of 1986, as amended (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 will be treated
as partnerships for federal income purposes and not as a corporation or
association taxable as a corporation. HADC is organized and after Closing will
be 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 upon due
election by the Company as provided under the Code.
(ii) 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 Code;
and each "pension plan" for which the Company or any 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.
Section 2. [Intentionally Left Blank]
Section 3. Sale and Delivery of Shares to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters named in Schedule I hereto, and each such
Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of $_______ per share, the aggregate number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I
9
hereto. The purchase price represents an initial public offering price of
$______ per share and an underwriting discount of $______ per share.
(b) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, to purchase up to an additional
1,005,000 Option Shares on the same terms and conditions as the Firm Shares. The
option hereby granted will expire if not exercised within the 30 day period
after the first date on which the Firm Shares are released by you for sale to
the public. The option granted hereby may be exercised by you, as
Representatives of the several Underwriters, in whole or in part (but not more
than once), only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Firm Shares, by giving
written notice to the Company. The notice of exercise shall set forth the number
of Option Shares as to which the several Underwriters are exercising the option,
and the time and date of payment and delivery thereof. Such time and date of
delivery (the "Date of Delivery") shall be determined by you but shall not be
earlier than the second business day after the date on which the notice of the
exercise of the option shall have been given nor later than seven full business
days after the exercise of such option, nor in any event prior to the Closing
Time. If the option is exercised as to all or any portion of the Option Shares,
the Option Shares as to which the option is exercised shall be purchased by the
Underwriters, severally and not jointly, in their respective underwriting
obligation proportions.
(c) Payment of the purchase price for and delivery of the Firm Shares
shall be made at the offices of Ferris, Baker, Xxxxx, Incorporated, 0000
Xxxxxxxxxxxx Xxxxxx, XX, Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 or at such other
place as shall be agreed upon by the Company and you, at 9:00 A.M. (prevailing
Eastern time), either (i) on the third full business day after the effective
date of the Registration Statement, or (ii) at such other time not more than ten
full business days thereafter as you, and the Company shall determine (unless,
in either case, postponed pursuant to Section 12 hereof) (such date and time of
payment and delivery being herein called the "Closing Time") (the Closing Time
and each Date of Delivery, if any, being sometimes referred to as a "Closing
Date"). In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, payment of the purchase price for and delivery of
the Option Shares shall be made at the offices of Ferris, Baker, Xxxxx,
Incorporated in the manner set forth above, or at such other place as you shall
determine, on the Date of Delivery as specified in the notice from you to the
Company. Payment for the Firm Shares and the Option Shares in immediately
available United States funds shall be made by the order of the Company, in the
case of Shares sold by the Company, against delivery to you for the respective
accounts of the Underwriters of the Shares to be purchased by them.
(d) The Shares to be purchased by the Underwriters shall be in such
denominations and registered in such names as you may request in writing at
least one full business day before the Closing Time or the Date of Delivery, as
the case may be. The Shares will be made available at the offices of Ferris,
Baker, Xxxxx, Incorporated or at such other place as Ferris, Baker, Xxxxx,
Incorporated may designate for examination and packaging not later than 9:00
A.M. (prevailing Eastern time) on the business day prior to the Closing Time or
the Date of Delivery, as the case may be.
Section 4. Certain Covenants of the Company and the Operating
Partnership. The Company and the Operating Partnership covenant and agree with
each Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective (if not yet effective at the date and time that
this Agreement is executed and delivered by the parties hereto). If the Company
elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the
Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations,
and subject to the provisions of Section 4(b) of this Agreement, the Company
will comply with the requirements of Rule 430A and will file the Prospectus,
properly completed, pursuant to the applicable provisions of Rule 424(b), or a
Term Sheet pursuant to and in accordance with Rule 434, within the time period
prescribed. If the Company elects to rely upon Rule 462(b), the Company shall
file a 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 A.M., prevailing Eastern time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee. The Company will notify you
immediately and confirm the notice in writing, (i) when the Registration
Statement, the 462(b) Registration Statement or any post-effective amendment to
the Registration
10
Statement, shall have become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission to amend
the Registration Statement or the 462(b) Registration Statement or amend or
supplement the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any 462(b) Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, or of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution or threat of any proceedings for any of such
purposes. The Company will use every reasonable effort to prevent the issuance
of any such stop order or of any order preventing or suspending such use and, if
any such order is issued, use its reasonable efforts to obtain the withdrawal
thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement or any amendment or supplement (i) to the Prospectus, if
the Company has not elected to rely upon Rule 430A, or (ii) if the Company has
elected to rely upon Rule 430A, to either the Prospectus included in the
Registration Statement at the time it becomes effective or to the Prospectus
filed in accordance with Rule 424(b) or any Term Sheet filed in accordance with
Rule 434, or (iii) if the Company has elected to rely upon Rule 462(b), to any
462(b) Registration Statement, in any case if you shall not have previously been
advised and furnished a copy thereof a reasonable time prior to the proposed
filing, or if you or counsel for the Underwriters shall reasonably object to
such amendment or supplement.
(c) The Company has furnished or will furnish to you, at the Company's
expense, as soon as available, as many conformed copies of the Registration
Statement as originally filed and of all amendments thereto, whether filed
before or after the Registration Statement becomes effective, copies of all
exhibits and documents filed therewith and copies of all consents and
certificates of experts, as you may reasonably request. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) The Company will deliver to each Underwriter, at the Company's
expense, from time to time, as many copies of each Preliminary Prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act and the 1933 Act
Regulations. The Company will deliver to each Underwriter, at the Company's
expense, as soon as the Registration Statement shall have become effective, and
thereafter from time to time as requested during the period when the Prospectus
is required to be delivered under the 1933 Act and the 1933 Act Regulations,
such number of copies of the Prospectus (as supplemented or amended) as each
Underwriter may reasonably request. The Preliminary Prospectus and Prospectus,
and any supplements or amendments thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its best efforts to comply with the 1933 Act
and the 1933 Act Regulations so as to permit the completion of the distribution
of the Shares as contemplated in this Agreement and in the Prospectus. In case
you are required to deliver a prospectus within nine months after the time of
issue of the Prospectus or any Term Sheet in connection with the offering or
sale of the Shares and if at such time any event shall have occurred as a result
of which the Prospectus or any Term Sheet as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus or any Term Sheet
is delivered, not misleading, or, if for any reason it shall be necessary during
such period, in the opinion of counsel for the Underwriters or for the Company,
to amend or supplement the Prospectus or any Term Sheet in order to comply with
the 1933 Act or the 1933 Act Regulations, the Company will notify you and upon
your request prepare promptly and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or any Term Sheet or a supplement to
the Prospectus or any Term Sheet which will correct such statement or omission
or effect such compliance. In case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time nine months
or more after the time of issue of the Prospectus or any Term Sheet, upon your
request but at the expense of such Underwriter, the Company will prepare and
deliver to such Underwriter as many copies as you may request of an
11
amended or supplemented Prospectus or any Term Sheet complying with the
requirements of Section 10(a)(3) of the 1933 Act.
(f) The Company will use its best efforts, in cooperation with you, to
qualify the Shares for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate and to maintain such
qualifications in effect for as long as may be necessary to complete the
distribution of the Shares; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign entity in any jurisdiction in which it is not otherwise so subject. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Shares have been qualified as above provided.
(g) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus under the caption "Use
of Proceeds."
(h) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than the end of the fiscal
quarter first occurring after the first anniversary of the "effective date of
the Registration Statement" (as defined in Rule 158(c) of the 1933 Act
Regulations), an earnings statement (in reasonable detail but which need not be
audited) complying with the provisions of Section 11(a) of the 1933 Act and Rule
158 of the 1933 Act Regulations and covering a period of at least 12 months
beginning after the effective date of the Registration Statement.
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the rules and regulations of the
Commission thereunder.
(j) During a period of 180 days from the date of the Prospectus, the
Company will not, without your prior written consent (i) directly or indirectly,
offer, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of, any Common Share or securities convertible
into or exercisable or exchangeable for Common Shares or file any registration
statement under the 1933 Act with respect to any of the foregoing , or (ii)
enter into any swap or any other agreement or other transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Shares, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Shares or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) any Common Shares issued by the Company upon the exercise of an
option or warrant or the conversion of a security described in the Prospectus,
(B) any Common Shares issued or options to purchase Common Shares granted
pursuant to the Company's 2002 Stock Incentive Plan, (C) any Common Shares
issued pursuant to any non-employee trustee stock plan or dividend reinvestment
plan, warrant or the conversion of a security outstanding upon completion of the
formation transactions described in the Prospectus or contributions to employee
benefit plans in existence on the Closing Date; (D) any Units issued in exchange
for the Properties and any real property or interest in any real property
acquired after the date hereof, or (E) any securities issued by the Company in
connection with any merger or acquisition by the Company of securities or assets
of a party that is not an affiliate of the Company.
(k) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar (which may be the
same entity as the transfer agent) for its Common Shares.
(l) The Company will use it best efforts to maintain the listing of its
Shares (including the Shares) on the New York Stock Exchange.
(m) The Company is familiar with the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder, and will in the future
conduct its and the Operating Partnership's affairs, in such a
12
manner so as to ensure that the Company and the Operating Partnership was not
and will not be an "investment company" within the meaning of the Investment
Company Act of 1940 and the rules and regulations thereunder.
(n) The Company will not, and will use its best efforts to cause its
officers, trustees and affiliates not to, (i) take, directly or indirectly prior
to the termination of the underwriting syndicate contemplated by this Agreement,
any action designed to stabilize or manipulate the price of any security of the
Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or manipulation
of the price of any security of the Company, to facilitate the sale or resale of
any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation
for soliciting purchases of the Shares or (iii) pay or agree to pay to any
person any compensation for soliciting any order to purchase any other
securities of the Company.
(o) If at any time during the 30-day period after the Registration
Statement becomes effective, any publication or event relating to or affecting
the Company shall occur as a result of which in your reasonable opinion the
market price of the Common Shares has been or is likely to be materially
affected (regardless of whether such publication or event necessitates a
supplement or amendment of the Prospectus) and after written notice from you
advising the Company to the effect set forth above, the Company agrees to
forthwith prepare, consult with you concerning the substance of, and disseminate
a press release or other public statement, reasonably satisfactory to you,
responding to or commenting on such publication or event.
(p) The Company will file timely and accurate information with the
Commission in accordance with Rule 463 of the 1933 Act Regulations or any
successor provision.
(q) The Company will supply you with copies of all correspondence to
and from and all documents issued to and by the Commission or the Commission
staff in connection with the registration of the Shares under the 1933 Act.
(r) The Company shall provide the Underwriters and/or their counsel
with copies of or access to all closing documents in respect of the purchase of
each Property as soon as practicable prior to the closing of the purchase of
such Property.
Section 5. [Intentionally Left Blank]
Section 6. Payment of Expenses.
(a) The Company will pay or cause to be paid and bear all costs, fees
and expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the Preliminary Prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters; (ii) the preparation, printing and distribution of
this Agreement, any Agreement Among Underwriters, and Selected Dealer Agreement;
(iii) the issuance and delivery of the Shares to the Underwriters, including any
transfer taxes payable upon the sale of the Shares to the Underwriters (other
than transfer taxes on resales by the Underwriters); (iv) the fees and
disbursements of the Company's counsel and accountants; (v) the fees and
expenses of the Underwriters' counsel in accordance with the terms of the letter
agreement dated January 25, 2002 between Windrose International L.L.C. and
Xxxxxx, Xxxxx Xxxxx, Incorporated; (vi) the qualification of the Shares under
the applicable securities laws in accordance with Section 4(e) hereof and any
filing for review of the offering with the NASD, including filing fees and fees
and disbursements of counsel for the Underwriters in connection therewith; (vii)
the transfer agent's and registrar's fees and all miscellaneous expenses
referred to in Item 14 of the Registration Statement; (viii) costs related to
travel and lodging incurred by the Company and its representatives relating to
meetings with and presentations to prospective purchasers of the Shares; and
(ix) all other costs and expenses incident to the performance of the Company's
and the Operating Partnership's obligations hereunder (including costs incurred
in closing the purchase of the Option Shares, if any)
13
that are not otherwise specifically provided for in this section. The Company,
upon your request, will provide funds in advance for filing fees in connection
with "blue sky" qualifications and the NASD.
(b) If the sale of Shares provided for herein is not consummated, the
Company and the Operating Partnership will reimburse the Underwriters on demand
for all reasonable out-of-pocket expenses, including fifty percent (50%) of the
fees and disbursements of Underwriters' counsel, reasonably incurred by the
Underwriters in connection with the transactions contemplated by this Agreement.
(c) As consideration for advisory services rendered by Xxxxxx, Xxxxx
Xxxxx, Incorporated to the Company in connection win the formation of the
Company and the Operating Partnership, the Company shall pay to Xxxxxx, Xxxxx
Xxxxx, Incorporated at the Closing an advisory fee equal to one percent (1%) of
the gross proceeds of the offering.
Section 7. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Shares that they have severally
agreed to purchase pursuant to this Agreement (whether Firm Shares at the
Closing Time or, upon exercise of the option granted in Section 3, Option Shares
on the Date of Delivery) are subject to the following conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M., prevailing Eastern time, on the date of this Agreement or, with
your consent, at a later time and date not later, however, than 5:30 P.M.,
prevailing Eastern time, on the first business day following the date hereof, or
at such later time or on such later date as you may agree to in writing; as of
such Closing Date the Registration Statement shall remain effective and no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to your knowledge or the knowledge of the
Company or the Operating Partnership, shall be contemplated by the Commission,
and any request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel for the
Underwriters. If the Company has elected to rely upon Rule 430A, a prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely on Rule 434, a
Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) You shall have received the favorable opinion, dated such Closing
Date, of Hunton & Xxxxxxxx, counsel for the Company, together with the favorable
opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, special Maryland counsel for
the Company, together with signed or reproduced copies of such opinions for each
of the other Underwriters, in form and substance satisfactory to you and counsel
for the Underwriters, as to the effect set forth in Exhibit A hereto.
(c) You shall have received a favorable opinion from Bass, Xxxxx & Xxxx
PLC, counsel for the Underwriters, dated such Closing Date, with respect to the
Registration Statement, the Prospectus and other related 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 purpose of enabling them to pass upon such matters.
In giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States, the law of the State of Tennessee, upon the opinions
of counsel satisfactory to the Representatives. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(d) As of such Closing Date,
(i) the Registration Statement, any 462(b) Registration
Statement, and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be
stated therein under the 1933 Act and the 1933 Act Regulations and in
all respects shall conform to the
14
requirements of the 1933 Act and the 1933 Act Regulations, the Company
shall have complied in all respects with Rule 430A (if it shall have
elected to rely thereon) and neither the Registration Statement, any
462(b) Registration Statement nor the Prospectus, as they may then be
amended or supplemented, shall contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(ii) there shall not have been any change in the capital stock
or long-term debt of the Company or the Operating Partnership or any
change, or any development involving a prospective change, in or
affecting the business, general affairs, management, condition
(financial or otherwise), shareholders' equity, results of operations,
properties or prospects of the Company or the Operating Partnership,
otherwise than as set forth in the Prospectus, the effect of which is,
in your judgment, so material and adverse as to make it impracticable
or inadvisable to proceed with the completion of the public offering of
the Shares;
(iii) no action, suit or proceeding at law or in equity before
or by any federal, state or other commission, court, board or
administrative agency shall be pending or, to the Company's knowledge,
threatened against the Company or the Operating Partnership that would
be required to be set forth in the Prospectus, other than as set forth
therein, wherein an unfavorable decision, ruling or finding would have
a Material Adverse Effect;
(iv) the Company and the Operating Partnership shall have
complied with all agreements and satisfied all conditions contained
herein in all material respects on their respective parts to be
performed or satisfied at or prior to such Closing Date; and
(v) the representations and warranties of the Company and the
Operating Partnership set forth in Section 1 shall be accurate in all
material respects as though expressly made at and as of such Closing
Date. You shall have received certificates, dated as of such Closing
Date, executed by the President and the Chief Financial Officer of the
Company to such effect and with respect to the following additional
matters:
(A) the Registration Statement has become effective
under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or preventing or
suspending the use of the Prospectus has been issued, and no
proceedings for that purpose have been instituted or are
pending or, to the best of their knowledge, threatened under
the 1933 Act;
(B) they have carefully reviewed the Registration
Statement, any 462(b) Registration Statement and the
Prospectus and when the Registration Statement and any 462(b)
Registration Statement became effective and at all times
subsequent thereto up to the delivery of such certificate, the
Registration Statement, any 462(b) Registration Statement and
the Prospectus and any amendments or supplements thereto
contained all statements and information required to be
included therein or necessary to make the statements therein
in light of the circumstances in which they were made, not
misleading and neither the Registration Statement, any 462(b)
Registration Statement, the Prospectus nor any amendment or
supplement thereto included any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, and, since the effective date of the
Registration Statement, there has occurred no event required
to be set forth in an amended or supplemented Prospectus that
has not been so set forth;
(C) all agreements herein to be performed by the
Company and the Operating Partnership, on or prior to such
Closing Date have been duly performed; and
15
(D) since the date of this Agreement or since the
respective dates as of which information is given in the
Prospectus, the Company has not experienced any event or
circumstance that would have a Material Adverse Effect.
(e) At the time of execution of this Agreement, you shall have received
from KPMG LLP a letter addressed to you and dated the date hereof, in form and
substance satisfactory to you and your counsel, together with signed or
reproduced copies of such letter(s) for each of the other Underwriters, (i)
confirming that they are independent public accountants with respect to the
Company and the Operating Partnership within the meaning of the 1933 Act and the
1933 Act Regulations, and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (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 1933
Act, the 1933 Act Regulations and applicable Staff Accounting Bulletins and
other official accounting 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 certain financial and other information contained in the
Registration Statement and the Prospectus.
(f) With respect to the letter of KPMG LLP delivered to you and
referred to in the preceding paragraph (e) (the "KPMG Initial Letter"), you
shall have received from KPMG LLP a letter of such accountants, in form and
substance satisfactory to you, addressed to the Underwriters and dated as of
such Closing Date, together with signed or reproduced copies of such letter for
each of the other Underwriters, to the effect that they reaffirm all statements,
conclusions and findings set forth in the KPMG Initial Letter; except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(g) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions, including without limitation as a result of terrorist
activities after the date hereof, or the effect of international conditions on
the financial markets in the United States shall be such as to make it, in your
reasonable judgment, impracticable or inadvisable to proceed with the completion
of the public offering the Shares.
(h) As of such Closing Date, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Shares as contemplated in this Agreement and the matters
referred to in Section 7(c) and in order to evidence the accuracy and
completeness of any of the representations and warranties or statements of the
Company and the Operating Partnership, the performance of any of the covenants
of the Company and the Operating Partnership, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company at or
prior to such Closing Date in connection with the authorization, issuance and
sale of the Shares as contemplated in this Agreement shall be reasonably
satisfactory in form and substance to you and to counsel for the Underwriters.
The Company will furnish you with such number of conformed copies of such
opinion, certificates, letters and documents as you shall request.
(i) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to such offering, such terms or the
Underwriters' participation in the same.
16
(j) The Firm Shares and the Option Shares, if any, shall have been
approved for listing on the New York Stock Exchange upon official notice of the
issuance, sale and evidence of satisfactory distribution thereof pursuant to
this Agreement.
(k) Each executive officer and trustee of the Company shall have agreed
in writing as to the matters set forth in Section 1(l).
(l) Contemporaneous with the Closing, the Company shall consummate the
acquisition of all Properties except Park Medical Center and Partell Medical
Center.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you on notice to the Company at any time at or
prior to such Closing Date, and such termination shall be without liability of
any party to any other party. Notwithstanding any such termination, the
provisions of Section 9 shall remain in effect and shall survive the termination
of this Agreement.
Section 8. [Intentionally Left Blank]
Section 9. Indemnification and Contribution.
(a) The Company and the Operating Partnership, jointly and severally,
agree to indemnify and hold harmless each Underwriter, its partners, directors
and officers and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act, and the
successors and assigns of all such persons, from and against any losses, claims,
damages or liabilities, joint or several, to which any such Underwriter or any
such other person may become subject under the 1933 Act, the Exchange Act,
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, the Prospectus, or any amendment 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, in light of the circumstances in which they were made, not
misleading, and will reimburse each Underwriter and each such partner, director,
officer, employee and controlling person for any legal or other expenses
reasonably incurred by such Underwriter, partner, director, officer, employee or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company and the
Operating Partnership shall 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 an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by you or by any
Underwriter through you expressly for use therein, it being understood and
agreed that the only such information furnished by you or by any Underwriter
through you consists of the information specified in Section 9(h) below;
provided, further, that the Company and the Operating Partnership will not be
liable for any such losses, claims, damages, or liabilities arising from the
sale of the Shares to any person if a copy of the Prospectus (as first filed
pursuant to Rule 424(b)) or the Prospectus as amended or supplemented by all
amendments or supplements thereto which has been furnished to the Underwriters
(within a reasonable amount of time prior to such sale) shall not have been
sent, mailed or given to such person, at or prior to the written confirmation of
the sale of such Shares to such person, but only if and to the extent that such
Prospectus, if so sent or delivered, would have cured the defect giving rise to,
and been a complete defense against the person asserting, such loss, claim,
damage or liability. This indemnity agreement shall be in addition to any
liabilities that the Company and the Operating Partnership may otherwise have.
(b) [Intentionally Left Blank.]
17
(c) Each Underwriter, severally but not jointly, will indemnify and
hold harmless the Company and the Operating Partnership against any losses,
claims, damages or liabilities to which the Company or the Operating Partnership
may become subject under the 1933 Act, the Exchange Act, 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 any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement or the Prospectus, or such amendment or supplement, or any Blue Sky
Application, in reliance upon and in conformity with information furnished to
the Company by such Underwriter expressly for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information specified in Section 9(h) below, and will reimburse the
Company and the Operating Partnership for any legal or other expenses reasonably
incurred by the Company or the Operating Partnership in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement shall be in addition to any liabilities that the
Underwriters may otherwise have.
The indemnity agreement in this Section 9(c) shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each trustee of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the Exchange Act, to the same extent as such
agreement applies to the Company.
(d) Within ten days after receipt by an indemnified party under
subsection (a) or (c) above of notice of commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; no indemnification provided in Section 9(a)
or 9(c) shall be available to any party who shall fail to give notice as
provided in this Section 9(d) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party otherwise than under this Section 9.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it shall wish, jointly with any other indemnifying party, similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized by the indemnifying party, (ii) the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying party and the indemnified party in
the conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in any of which events
such fees and expenses shall be borne by the indemnifying party provided that
the indemnifying party shall not be liable for more than one separate counsel
(together with any local counsel). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(e) [Intentionally Left Blank]
18
(f) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 9 is for
any reason judicially determined (by the entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the
Operating Partnership and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company, the Operating Partnership and one or
more of the Underwriters, as incurred, in such proportions that (i) the
Underwriters are responsible pro rata for that portion represented by the
underwriting discount appearing on the cover page of the Prospectus bears to the
public offering price (before deducting expenses) appearing thereon, and (ii)
the Company and the Operating Partnership are responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation;
provided, further, that if the allocation provided above is not permitted by
applicable law, the Company, the Operating Partnership and the Underwriters
shall contribute to the aggregate losses in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the relative
fault of the Company, the Operating Partnership and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. Relative fault 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, by the Operating Partnership or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages or liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (f), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of this
Section 9(f), the partners, directors, officers and employees and each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each trustee of the Company, each officer of the
Company who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the Exchange Act shall have the same rights to contribution as the
Company.
(g) [Intentionally Left Blank]
(h) For purposes of this Section 9, the Underwriters severally confirm,
and the Company and the Operating Partnership acknowledge, that the second
paragraph below the pricing table on the prospectus cover, the second and fifth
paragraphs under the caption "Underwriting" and the information set forth under
the heading "Stabilization, Short Positions and Penalty Bids" under the caption
"Underwriting" in the Prospectus constitutes the only information furnished by
the Underwriters to the Company for inclusion in the Prospectus or the
Registration Statement.
Section 10. Representations and Agreements to Survive Delivery. The
representations, warranties, covenants, indemnities, agreements and other
statements of the Company and the Operating Partnership set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company, the
Operating Partnership, any Underwriter or any representative, officer, director
or any controlling person with respect to an Underwriter, the Company, or the
Operating Partnership, and will survive delivery of and payment for the Shares
or termination of this Agreement.
Section 11. Effective Date of Agreement and Termination.
(a) This Agreement shall become effective immediately as to Sections 6
and 9 and, as to all other provisions, (i) if at the time of execution of this
Agreement the Registration Statement has not become effective, at 9:00 A.M.
prevailing Eastern time, on the first full business day following the
effectiveness of the Registration
19
Statement, or (ii) if at the time of execution of this Agreement, the
Registration Statement has been declared effective, at 9:00 A.M. prevailing
Eastern time on the first full business day following the date of execution of
this Agreement; but this Agreement shall nevertheless become effective at such
earlier time after the Registration Statement becomes effective as you may
determine on and by notice to the Company or by release of any of the Shares for
sale to the public. For the purposes of this Section 11, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams or facsimile messages (i) advising the Underwriters that the Shares
are released for public offering, or (ii) offering the Shares for sale to
securities dealers, whichever may occur first. By giving notice before the time
this Agreement becomes effective, you, as the Representatives of the several
Underwriters, or the Company, may prevent this Agreement from becoming
effective, without liability of any party to any other party, except that the
Company shall remain obligated to pay costs and expenses to the extent provided
in Section 6 hereof.
(b) You may terminate this Agreement by notice to the Company at any
time at or prior to the Closing Date in accordance with the last paragraph of
Section 7 of this Agreement.
(c) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party, except
that, notwithstanding any such termination, (i) the provisions of Section 6 and
Section 9 shall remain in effect, and (ii) if any Shares have been purchased
hereunder, the representations and warranties in Section 1 and all obligations
under Section 4 shall also remain in effect.
Section 12. Default by One or More of the Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the
Firm Shares which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Firm Shares on the terms contained herein. If within 36 hours after such default
by any Underwriter you do not arrange for the purchase of such Firm Shares, then
the Company shall be entitled to a further period of 36 hours within which to
procure another party or other parties satisfactory to you to purchase such Firm
Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Firm Shares, or the Company notifies you that it has so arranged for the
purchase of such Firm Shares, you or the Company shall have the right to
postpone the Closing Time for a period of not more than seven days in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any persons substituted
under this Section 12 with like effect as if such person had originally been a
party to this Agreement with respect to such Firm Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares of a defaulting Underwriter or Underwriters made by you or the
Company as provided in subsection (a) above, the aggregate number of Firm Shares
which remains unpurchased does not exceed 10% of the Firm Shares, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the Firm Shares which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Firm Shares which such Underwriter agreed to
purchase hereunder) of the Firm Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares of a defaulting Underwriter or Underwriters made by you or the
Company as provided in subsection (a) above, the number of Firm Shares which
remains unpurchased exceeds 10% of the Firm Shares, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Shares of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company except for the
expenses to be borne by the Company, and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 9 hereof.
(d) Nothing herein shall relieve a defaulting Underwriter from
liability for its default.
20
Section 13. Default by the Company. If the Company shall fail at the
Closing Time to sell and deliver the respective aggregate number of Firm Shares
that it is obligated to sell, then this Agreement shall terminate without any
liability on the part of any non-defaulting party, except to the extent provided
in Section 6 and except that the provisions of Section 9 shall remain in effect.
Section 14. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
mailed, delivered or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed c/o Ferris, Xxxxx Xxxxx,
Incorporated, 0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000,
Attention: Xx. Xxxx X. Xxxxxx, Xx., Senior Vice President (with a copy sent in
the same manner to Bass, Xxxxx & Xxxx PLC, 000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx X. Good, Esq.); and notices to the
Company or the Operating Partnership shall be directed to 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, Riverfront Plaza, East Tower, 000 X. Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxx, Esq.). Each notice
hereunder shall be effective upon receipt by the party to which it is addressed.
Section 15. Parties. This Agreement is made solely for the benefit of
the Underwriters, the Company and the Operating Partnership and, to the extent
so provided, the partners, directors, trustees and employees of the Underwriters
and any person controlling any of the Underwriters, the directors of the
Company, the officers of the Company who have signed the Registration Statement
and any person controlling the Company, and their respective executors,
administrators, successors and assigns and, subject to the provisions of Section
12, no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, as
such purchaser, from any of the several Underwriters of the Shares.
Section 16. Governing Law and Time. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
Specified time of the day refers to United States Eastern Time, unless otherwise
specified.
Section 17. Counterparts. This Agreement may be executed in any number
of counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, and the several
Underwriters in accordance with its terms.
Very truly yours,
WINDROSE MEDICAL PROPERTIES TRUST
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WINDROSE MEDICAL PROPERTIES, L.P.
By: WINDROSE MEDICAL PROPERTIES
TRUST
Its General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXX, XXXXX XXXXX, INCORPORATED
XXXXXX XXXXXX & COMPANY, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
SWS GROUP, INC.
By: Xxxxxx, Xxxxx Xxxxx, Incorporated
As representatives of the underwriters
listed above
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
22
SCHEDULE I
Name Number of Shares
---- ----------------
Xxxxxx, Xxxxx Xxxxx, Incorporated..........................
Xxxxxx Xxxxxx & Company, Inc...............................
Xxxxxx, Xxxxxxxx & Company, Incorporated...................
SWS Group, Inc.............................................
Total...................................................... 6,700,000
Schedule I
SCHEDULE II
LIST OF PROPERTIES
Park Medical Center
Partell Medical Center
Sierra Health Services (0000 X. Xxxxxxxxxx Xxxxxxxxx)
Sierra Health Services (0000 X. Xxxxxxxxxx Xxxxxxxxx)
Sierra Health Services (000 X. Xxxxxx Xxxxx)
Sierra Health Services (0000 X. Xxxxxxx Xxxxxx)
Exhibit A
Form of Opinion of Company's Counsel
To Be Delivered Pursuant To
Section 5(b)
(i) The Company has been duly formed and is 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 SDAT.
(ii) The Company has the trust power to own its properties and to
conduct its business in all material respects as described in the Prospectus and
to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is qualified to transact business as a foreign entity
and is in good standing in each jurisdiction set forth in Schedule I.
(iv) The authorized, issued and outstanding shares of beneficial
interest of the Company will, at the Closing Time and giving effect to the
issuance of the Firm Shares under the Underwriting Agreement, be as set forth in
the Prospectus under the captions "The Offering" and "Capitalization" (except
for subsequent issuances, if any, pursuant to the Underwriting Agreement or
pursuant to reservations, agreements, equity incentive plans or employee benefit
plans referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus); the shares of issued and
outstanding shares of beneficial interest of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; and, to
such counsel's knowledge, none of the outstanding shares of shares of beneficial
interest of the Company was issued in violation of the preemptive or other
similar rights of any shareholder of the Company.
(v) Windrose Medical Properties, L.P. is a limited partnership duly
formed and validly existing under the laws of the Commonwealth of Virginia.
Brierbrook Partners, LLC (together with Windrose Medical Properties, L.P., the
"Operating Entities") has been duly formed and is validly existing under the
laws of the State of Tennessee.
(vi) Each of the Operating Entities has partnership or limited
liability company power and authority to own its properties and to conduct its
business as described in the Prospectus.
(vii) Each of the Operating Entities is qualified to transact business
as a foreign partnership or limited liability company and is in good standing in
each jurisdiction set forth in Schedule II.
(viii) The issued and outstanding units of partnership interest of
Windrose Medical Properties, L.P. have been duly authorized and validly issued
and are fully paid; and, to such counsel's knowledge, none of the outstanding
units of Windrose Medical Properties, L.P. was issued in violation of the
preemptive or other similar rights of any partner of Windrose Medical
Properties, L.P.
1
(ix) HADC has been duly incorporated and is validly existing and in
good standing under the laws of the State of Indiana with the corporate power
and authority to own its properties and to conduct its business as described in
the Prospectus; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding shares of capital stock or LLC interests of HADC
and Brierbrook Partners, LLC has been duly authorized and validly issued, is
fully paid and non-assessable. Upon completion of the formation transactions
described in the Prospectus, Windrose Medical Properties, L.P. will own the
capital stock of HADC and the limited liability company interests of Brierbrook
Partners, LLC as described in the Prospectus free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity created by
Windrose Medical Properties, L.P.
(x) The Underwriting Agreement was duly authorized by all necessary
trust and partnership action of the Company and Windrose Medical Properties,
L.P., respectively, and executed and delivered by the Company and Windrose
Medical Properties, L.P.
(xi) We have been informed by the Commission that the Registration
Statement, including any Rule 462(b) Registration Statement, has been declared
effective under the 1933 Act. Any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period required by
Rule 424(b). To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(xii) If Rule 434 has been relied upon, the Prospectus was not
"materially different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
(xiii) The form of certificate used to evidence the Common Shares
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the declaration of trust and by-laws of the
Company and the requirements of the New York Stock Exchange.
(xiv) The information in the Prospectus under "Prospectus Summary--Tax
Status," "Prospectus Summary--Our Corporate Structure," "Description of Shares
of Beneficial Interest," "Certain Provisions of Maryland Law and of our
Declaration of Trust and Bylaws," "Partnership Agreement," "Federal Income Tax
Consequences of our Status as a REIT" and "Other Tax Consequences" and in the
Registration Statement under Item 34, to the extent that it constitutes matters
of law, or legal conclusions, has been reviewed by such counsel and fairly
summarizes the information set forth therein.
(xv) To such counsel's knowledge, the Company is not in violation of
its declaration of trust or bylaws or the partnership agreement of Windrose
Medical Properties, L.P. and no default by the Company or Windrose Medical
Properties, L.P. exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is filed as an exhibit to the Registration Statement.
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(xvi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency under Federal or Maryland law (other than under the 1933 Act
and the 1933 Act Regulations, which have been obtained, or as may be required
under the NASD Regulation, Inc. or the securities or blue sky laws of the
various states, as to which such counsel need express no opinion) is necessary
or required in connection with the due authorization, execution and delivery of
the Underwriting Agreement or for the offering, issuance, sale or delivery of
the Shares.
(xvii) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and compliance by the Company and Windrose Medical
Properties, L.P. with their respective obligations under the Underwriting
Agreement do not and will not, (A) whether with or without the giving of notice
or lapse of time or both, constitute a breach of, or default under or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or Windrose Medical Properties, L.P. (except for such
conflicts, breaches, or defaults or liens, charges or encumbrances that would
not have a Material Adverse Effect) or (B) result in any violation of the
provisions of the declaration of trust or by-laws of the Company or partnership
agreement of Windrose Medical Properties, L.P. The execution, delivery and
performance of the Underwriting Agreement and the consummation of the
transactions contemplated in the Underwriting Agreement and compliance by the
Company and Windrose Medical Properties, L.P. with their respective obligations
under the Underwriting Agreement (other than the performance of indemnification
or contribution obligations thereunder, concerning which no opinion need be
expressed) do not and will not violate any applicable Federal, Virginia or
Maryland law, statute, rule, regulation, judgment, order, writ or decree, known
to such counsel, of any government, government instrumentality or court having
jurisdiction over the Company or Windrose Medical Properties, L.P. or any of
their respective properties, assets or operations.
(xviii) To our knowledge, except as disclosed in the Prospectus or
pursuant to the Amended and Restated Agreement of Limited Partnership of
Windrose Medical Properties, L.P., there are no persons with registration rights
or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the 1933
Act.
(xix) Based upon representations and warranties of the Company,
Windrose Medical Properties, L.P. and the recipients of units of partnership
interest in Windrose Medical Properties, L.P., the issuance of the units as
described in the Prospectus is exempt from registration under the 0000 Xxx.
(xx) The Company is not an "investment company" as such term is defined
in the 0000 Xxx.
(xxi) Commencing with the Company's initial taxable year beginning on
the day prior to the closing of the offering and ending December 31, 2002, the
Company has been organized in conformity with the requirements for qualification
as a REIT under the Code and the Company's current organization and proposed
method of operation (as described in the registration statement filed with the
Securities and Exchange Commission on May 24, 2002 on Form S-11 (File No.
333-89186), as amended through the date of the opinion, and a certificate of
representations
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provided by an officer of the Company in connection with the opinion) will
enable the Company to continue to so qualify.
(xxii) Windrose Medical Properties, L.P. has been formed in such a
manner to qualify for treatment as, and it will be properly treated as, a
partnership or as an entity disregarded as separate from the Company for federal
income tax purposes since the date of its formation through the date hereof.
(xxiii) Brierbrook Partners, LLC is and has been properly treated as a
partnership for federal income tax purposes and not as a corporation or as an
association taxable as a corporation, throughout the period from June 2, 2000,
through the date hereof.
(xxiv) Hospital Affiliates Development Corporation ("HADC") is
organized and after Closing will be owned in a manner that meets the
requirements for qualification as a taxable REIT subsidiary under the Code, and
its method of operation will enable it to meet the requirements for treatment as
a taxable REIT subsidiary upon due election by the Company as provided under the
Code.
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Such counsel shall also confirm that it is not aware of any pending or
threatened action, suit or proceeding to which the Company or any Subsidiary is
a party, or to which the property of the Company or any Subsidiary is subject,
before or brought by any court or governmental agency or body which is required
to be disclosed in the Registration Statement that has not been so described or
that is not described accurately in all material respects in the Registration
Statement, as the case may be.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Underwriters and their counsel and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for and makes no
representation that it has independently verified, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of such counsel's participation in the conferences
described above, such counsel shall advise you that (a) the Registration
Statement, when it became effective, and the Prospectus, as of its date and as
of the date of the opinion (other than the financial statements and related
notes and schedules and other financial and statistical data included therein or
omitted therefrom, as to which such counsel need express no belief) comply as to
form in all material respects with the requirement of the 1933 Act and the 1933
Act Regulations, and (b) such counsel does not know of any contracts or
documents of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed as required. Further, nothing has come to the attention
of such counsel that leads such counsel to believe that (i) the Registration
Statement when it became effective (except with respect to the financial
statements and related notes and schedules and other financial and statistical
data included therein or omitted therefrom, as to which such counsel need not
express any belief), contained any untrue statement of a material fact or
omitted
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to state any material fact required to be stated therein or necessary to make
the statements therein no misleading or (ii) the Prospectus, as of its date and
as of the date of the opinion (except with respect to the financial statements
and related notes and schedules and other financial and statistical data
included therein or omitted therefrom, as to which such counsel need not express
any belief), contained or contains any untrue statement of a material fact or
omitted or omits 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
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