EXHIBIT 10.1
FORM OF PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of June , 2005, is
by and among Windrose Medical Properties Trust, a Maryland real estate
investment trust (the "Company"), each Purchaser listed under the heading
"Direct Purchasers" on Schedule A (each, a "Direct Purchaser"), each Investment
Adviser listed under the heading "Investment Advisers" on the signature pages
hereto (each, an "Investment Adviser") who are entering into this Agreement on
behalf of themselves (as to Section 4 of this Agreement) and those Purchasers
which are a fund or individual or other investment advisory client of such
Investment Adviser listed under their respective names on Schedule B (each, a
"Client"), and each Broker-Dealer listed on Schedule C (each, a "Broker-Dealer")
which is entering into this Agreement on behalf of itself (as to Section 5 of
this Agreement) and those Purchasers which are customers for which it has power
of attorney to sign listed under their respective names on Schedule C (each, a
"Customer"). Each of the Customers, Direct Purchasers and Clients are referred
to herein as individually, a "Purchaser" and collectively, the "Purchasers."
WHEREAS, the Purchasers desire to purchase from the Company (or their
Investment Advisers and Broker-Dealers desire to purchase on their behalf from
the Company), and the Company desires to issue and sell to each Purchaser the
number of shares (the "Offered Shares") of Series A Cumulative Convertible
Preferred Shares, par value $0.01 per share (the "Series A Convertible Preferred
Stock"), set forth opposite the name of each Purchaser on Schedule A, Schedule B
or Schedule C, as the case may be, at a price per share of $25.00.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
Investment Advisers and the Broker-Dealers (on behalf of Purchasers which are
Clients and Customers, respectively) and the other Purchasers hereby severally
and not jointly agree to purchase from the Company, and the Company agrees to
issue and sell to the several Purchasers the number of Offered Shares set forth
next to such Purchaser's name on Schedule A, Schedule B or Schedule C, as the
case may be, at a price per share of $25.00 (the "Purchase Price") at the
Closing (as defined below). The aggregate Purchase Price payable on the Closing
Date in respect of all shares of Series A Preferred Stock pursuant to this
Purchase Agreement is set forth on Schedule D hereof.
2. Representations and Warranties of Purchaser. Each Purchaser
represents and warrants with respect to itself that:
(a) Due Authorization. Such Purchaser has full power and
authority to enter into this Agreement and is duly authorized to
purchase the Offered Shares in the amount set forth opposite its name
on Schedule A, Schedule B or Schedule C, as the case may be. This
Agreement has been duly authorized by such Purchaser and duly executed
and delivered by or on behalf of such Purchaser. This Agreement
constitutes a legal, valid and binding agreement of such Purchaser,
enforceable against such Purchaser in
accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefore may be brought (the
"Enforceability Exceptions").
(b) Prospectus and Prospectus Supplement. Such Purchaser has
received a copy of the Company's Basic Prospectus dated February 2,
2004 the preliminary prospectus supplement dated June 21, 2005, and the
Prospectus Supplement, dated June , 2005 (each as defined below).
(c) Ownership of Excess Shares of Capital Stock. As of the
date hereof and after giving effect to the transaction contemplated
hereby, such Purchaser, together with its subsidiaries and affiliates,
does not own directly or indirectly more than 9.9% in number of shares
or value, whichever is more restrictive, of any class or series of the
issued and outstanding capital stock of the Company. Purchaser
expressly acknowledges that the provisions of the Company's Declaration
of Trust, as amended or supplemented (the "Charter"), in general, and
the Articles Supplementary relating to the Offered Shares ("Articles
Supplementary"), in particular, prohibit the ownership by Purchaser
(together with its subsidiaries and affiliates) directly or indirectly
of more than 9.9% of the number of issued and outstanding Series A
Convertible Preferred Stock and not more than 9.9% of the number of
issued and outstanding shares of any other class or series of the
Company's capital stock and, in the event Purchaser's Series A
Convertible Preferred Stock acquired pursuant to this Agreement or
otherwise exceed such ownership limitation, such number of shares of
Series A Preferred Stock in excess of such ownership limit shall be
automatically transferred to a Charitable Trust on the terms set forth
in the Charter and referenced in the Articles Supplementary.
3. Representations and Warranties of Company. The Company
represents and warrants that:
(a) The Company's Registration Statement (as defined below)
was declared effective by the SEC (as defined below) and the Company
has filed such post-effective amendments thereto as may be required
under applicable law prior to the execution of this Agreement and each
such post-effective amendment became effective. The SEC has not issued,
nor to the Company's knowledge, has the SEC threatened to issue or
intends to issue, a stop order with respect to the Registration
Statement, nor has it otherwise suspended or withdrawn the
effectiveness of the Registration Statement or to the Company's
knowledge, threatened to do so, either temporarily or permanently, nor,
to the Company's knowledge, does it intend to do so. On the effective
date, the Registration Statement complied in all material respects with
the requirements of the Securities Act of 1933, as amended (the "Act")
and the rules and regulations promulgated under the Act (the
"Regulations"); at the effective date the Basic Prospectus (as defined
below) complied, and at the Closing the Prospectus (as defined below)
will comply, in all material respects with the requirements of the Act
and the Regulations; each of the Basic
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Prospectus and the Prospectus as of its date and at the Closing Date
did not, does not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any of the
Purchasers, Xxxxx & Steers Capital Advisors, LLC, in its capacity as
placement agent ("Placement Agent"), any Investment Advisers or
Broker-Dealers, or any of their respective affiliates, expressly for
use in the Prospectus. As used in this Agreement, the term
"Registration Statement" means the shelf registration statement on Form
S-3 (File No. 333-112183), as declared effective by the Securities and
Exchange Commission (the "SEC"), including exhibits, financial
statements, schedules and documents incorporated by reference therein.
The term "Basic Prospectus" means the prospectus included in the
Registration Statement at the time it became effective. The term
"Prospectus Supplement" means the prospectus supplement dated June ,
2005 specifically relating to the Offered Shares as to be filed with
the SEC pursuant to Rule 424 under the Act in connection with the sale
of the Offered Shares hereunder. The term "Prospectus" means the Basic
Prospectus and the Prospectus Supplement taken together. The term
"preliminary prospectus" means the preliminary prospectus supplement
dated as of June 21, 2005 and the Basic Prospectus used with such
preliminary prospectus supplement in connection with the marketing of
the Offered Shares. Any reference in this Agreement to the Registration
Statement, the Prospectus or the preliminary prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
as of the date hereof or the date of the Prospectus or the preliminary
prospectus as the case may be, and any reference herein to any
amendment or supplement to the Registration Statement or the Prospectus
shall be deemed to refer to and include any documents filed after such
date and through the date of such amendment or supplement under the
Exchange Act and so incorporated by reference into such Prospectus
prior to the completion of the offering of the Offered Shares. The
Company has filed all material contracts required to be filed as an
exhibit to its Annual Report on Form 10-K for the year ended December
31, 2004.
(b) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change or any
development which could reasonably be expected to give rise to a
prospective material adverse change in or affecting the condition,
financial or otherwise, or in the earnings, business affairs or, to the
Company's knowledge, business prospects of the Company and the
subsidiaries of the Company, if any (the "Subsidiaries") considered as
one enterprise, whether or not arising in the ordinary course of
business, (ii) there have been no transactions entered into by the
Company or any of its Subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its Subsidiaries considered as one enterprise, and (iii) other than
regular quarterly dividends, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
shares of equity securities.
(c) The Company has been duly organized as a real estate
investment trust and is validly existing in good standing under the
laws of the State of Maryland. Each of
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the Subsidiaries of the Company has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of
organization. Each of the Company and its Subsidiaries has the required
power and authority to own and lease its properties and to conduct its
business as described in the Prospectus; and each of the Company and
its Subsidiaries is duly qualified to transact business in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or, to the Company's knowledge, business
prospects of the Company and its Subsidiaries considered as one
enterprise.
(d) As of the date hereof, the authorized capital stock of the
Company consisted of 100,000,000 Common Shares of Beneficial Interest,
par value $0.01 per share (the "Common Shares"). As of the date hereof,
13,744,235 Common Shares are issued and outstanding (without giving
effect to any preferred stock issued or to be issued as contemplated by
this Agreement or the application of the proceeds of the offering
contemplated hereby). The issued and outstanding shares of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; the Offered Shares have been duly authorized, and when
issued in accordance with the terms of the Articles Supplementary (as
defined below) and delivered as contemplated hereby, will be validly
issued, fully paid and non-assessable; the Offered Shares and the
Common Shares of the Company conform to all statements relating thereto
contained in the Prospectus; and the issuance of the Offered Shares is
not subject to preemptive or other similar rights.
(e) Neither the Company nor any of its Subsidiaries is in
violation of its organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument or agreement to which the
Company or any of its Subsidiaries is a party or by which it or any of
them are bound, or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, except where such
violation or default would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or, to the Company's knowledge, business prospects of the Company and
its Subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement, the execution and filing of
the Articles Supplementary, and the issuance and delivery of the
Offered Shares and the consummation of the transactions contemplated
herein have been duly authorized by all necessary action and will not
conflict with or constitute a material breach of, or material default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any material property or assets of the Company or any
of its Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument or agreement
to which the Company or any of its Subsidiaries is a party or by which
it or any of them are bound, or to which any of the property or assets
of the Company or any of its Subsidiaries is subject, nor will any such
action result in any violation of the provisions of the Charter, as
amended and supplemented by the Articles Supplementary, by-laws or
other
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organizational documents of the Company or any of its Subsidiaries or
any law, administrative regulation or administrative or court decree
applicable to the Company.
(f) The Company is organized in conformity with the
requirements for qualification and, as of the date hereof and as of the
Closing, operates in a manner that qualifies it as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended,
and the rules and regulations thereunder and will be so qualified after
giving effect to the sale of the Offered Shares, assuming the accuracy
of the representations of the Purchasers set forth herein.
(g) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(h) No legal or governmental proceedings are pending to which
the Company or any of its Subsidiaries is a party or to which the
property of the Company or any of its Subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein, and no such proceedings have
been threatened against the Company or any of its Subsidiaries or with
respect to any of their respective properties that are required to be
described in the Registration Statement or the Prospectus and are not
described therein.
(i) No authorization, approval or consent of or filing with
any court or United States federal or state governmental authority or
agency is necessary in connection with the sale of the Offered Shares
hereunder, except (i) such as may be required under the Act or the
Regulations or state securities laws or real estate syndication laws
and (ii) the filing of the Articles Supplementary as set forth in
paragraph (l) below.
(j) The Company and its Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now conducted by them, except where the failure to possess
such certificates, authority or permits would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or, to the Company's knowledge, business
prospects of the Company and its Subsidiaries considered as one
enterprise. Neither the Company nor any of its Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or, to the
Company's knowledge, business prospects of the Company and its
Subsidiaries considered as one enterprise, nor, to the knowledge of the
Company, are any such proceedings threatened or contemplated.
(k) The Company has full power and authority to enter into
this Agreement, and this Agreement has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms except as may be limited by the Enforceability
Exceptions.
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(l) The Articles Supplementary, and the filing of the Articles
Supplementary with the State Department of Assessments and Taxation of
Maryland on behalf of the Company, have each been duly authorized by
the Company; the Articles Supplementary will be filed with the State
Department of Assessments and Taxation of Maryland on behalf of the
Company prior to the time that any Offered Shares are issued pursuant
to this Agreement and when so filed will constitute a valid and legally
binding supplement to the Charter of the Company enforceable against
the Company in accordance with its terms, except as enforceability may
be limited by the Enforceability Exceptions.
(m) As of the dates set forth therein or incorporated by
reference, the Company's subsidiaries had good and marketable title to
all of the properties and assets reflected in the audited financial
statements contained in the Prospectus, subject to no lien, mortgage,
pledge or encumbrance of any kind except (i) those reflected in such
financial statements, (ii) as are otherwise described in the
Prospectus, (iii) as do not materially adversely affect the value of
such property or interests or interfere with the use made or proposed
to be made of such property or interests by the Company and its
Subsidiaries or (iv) customary provisions of mortgage loans secured by
mortgages or deeds of trust on similar types of properties.
(n) Neither the issuance, sale and delivery of the Offered
Shares nor the application of the proceeds thereof by the Company as
described in the Prospectus will cause the Company to violate or be in
violation of Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of
Governors.
(o) The statements set forth in the Basic Prospectus under the
caption "Description of Preferred Stock" and the statements set forth
in the Prospectus Supplement under the caption "Description of Our
Capital Stock -- Series A Convertible Preferred Stock," in each case,
in so far as such statements purport to summarize provisions of laws or
documents referred to therein, are correct in all material respects and
fairly present the information required to be presented therein.
4. Representation and Warranties of the Investment Advisers. To induce
the Company to enter into this Agreement, each of the Investment Advisers hereby
represents and warrants that:
(a) It is an investment adviser duly registered with the SEC
under the Investment Advisers Act of 1940.
(b) It has been duly authorized to act as investment adviser
on behalf of each Client on whose behalf it is signing this Agreement
(as identified under the name of such Investment Adviser on Schedule B
hereto) and has the sole authority to make the investment decision to
purchase Offered Shares hereunder on behalf of such Client.
(c) It has the power and authority to enter into and execute
this Agreement on behalf of each of the Clients listed under its name
on Schedule B hereto.
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(d) This Agreement has been duly authorized, executed and
delivered by it and, assuming it has been duly authorized, executed and
delivered by the Company, constitutes a legal, valid and binding
agreement of such Investment Adviser, enforceable against it in
accordance with its terms except as may be limited by the
Enforceability Exceptions.
(e) It has received a copy of the Company's Basic Prospectus
dated February 2, 2004 and Prospectus Supplement dated June , 2005.
5. Representation and Warranties of the Broker-Dealers. To induce the
Company to enter into this Agreement, each Broker-Dealer represents and warrants
that:
(a) It is duly registered and in good standing as a
broker-dealer under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and is licensed or otherwise qualified to do
business as a broker-dealer with the National Association of Securities
Dealers, Inc. and in all states in which it will offer any Offered
Shares pursuant to this Agreement.
(b) It has delivered a copy of the Prospectus to each
Purchaser set forth under its name on Schedule C hereto.
(c) It has been granted a duly authorized power-of-attorney to
execute and deliver this Agreement on behalf of each Customer on whose
behalf it is signing this Agreement (as identified under the name of
such Broker-Dealer on Schedule C hereto) and such power has not been
revoked.
(d) This Agreement has been duly authorized, executed and
delivered by it and, assuming it has been duly authorized, executed and
delivered by the Company, constitutes a legal, valid and binding
agreement of such Broker-Dealer, enforceable against it in accordance
with its terms except as may be limited by the Enforceability
Exceptions.
6. Conditions to Obligations of the Parties. (a) The Purchasers'
several obligation to purchase the Offered Shares shall be subject to the
following conditions having been met:
(i) the representations and warranties set forth in Section 3
of this Agreement shall be true and correct with the same force and
effect as though expressly made at and as of the Closing,
(ii) the Purchasers shall have received an opinion from
Xxxxxxx LLP, special Maryland counsel to the Company, dated as of the
date of the Closing, substantially in the form attached hereto as
Exhibit A,
(iii) the Purchasers shall have received an opinion from
Hunton & Xxxxxxxx LLP, special securities counsel to the Company, dated
as of the date of the Closing, substantially in the form attached
hereto as Exhibit B with respect to the matters covered
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therein and otherwise in form and substance reasonably acceptable to
the Placement Agent and its counsel,
(iv) the Placement Agent shall have received a comfort letter
from KPMG LLP, dated as of the Closing, substantially in the form
attached hereto as Exhibit C, and
(v) on the Closing Date, the Company shall have delivered to
the Purchasers a certificate of the Chief Executive Officer and Chief
Financial Officer of the Company, dated as of the Closing Date, setting
forth that each of the representations and warranties contained in this
Agreement shall be true on and as of the Closing Date in all material
respects as if made as of the Closing Date and each of the conditions
and covenants contained herein shall have been complied with to the
extent compliance is required prior to Closing, and shall have
delivered such other customary certificates as the Placement Agent
shall have reasonably requested.
(b) The Company's obligation to issue and sell the Offered Shares shall
be subject to the following conditions having been met:
(i) the representations and warranties set forth in Sections
2, 4 and 5 of this Agreement shall be true and correct with the same force
and effect as though expressly made at and as of the Closing, and
(ii) the Company shall have received payment in full for the
Purchase Price for the Offered Shares by federal wire transfer of immediately
available funds, not less than the aggregate amount of $ net of fees,
commissions and expenses.
7. Closing. Provided that the conditions set forth in Section 6 hereto
and the last sentence of this Section 7 have been met or waived at such time,
the transactions contemplated hereby shall be consummated on July , 2005, or
at such other time and date as the parties hereto shall agree (each such time
and date of payment and delivery being herein called the "Closing"). At the
Closing, settlement shall occur through Continental Stock Transfer & Trust
Company, or an affiliate thereof, on a delivery versus payment basis through the
DTC ID System.
8. Covenants. The Company hereby covenants and agrees that (a) as soon
as practicable, the Company shall apply for listing the Offered Shares for
trading on the New York Stock Exchange ("NYSE") and will use its commercially
reasonable efforts to obtain approval of the NYSE with respect to such listing
as soon as practicable within 30 days after the Closing Date, and if such
approval is not so obtained within 30 days, to continue to use its commercially
reasonable efforts to obtain such approval as soon as practicable thereafter and
(b) subject to all Purchasers consummating the purchase of the Offered Shares at
the Closing, the Company will use the proceeds of the offering contemplated
hereby as set forth under the caption "Use of Proceeds" in the Prospectus
Supplement.
9. Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned, by written notice promptly given to the
other parties hereto, at any time prior to the Closing by the Company, on the
one hand, or any Purchaser on
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the other, if the Closing shall not have occurred on or prior to July 15, 2005;
provided that the Company or such Purchaser, as the case may be, shall not be
entitled to terminate this Agreement pursuant to this Section 9 if the failure
of Closing to occur on or prior to such dates results primarily from such party
itself having materially breached any representation, warranty or covenant
contained in this Agreement.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing and, if to the Purchasers,
shall be sufficient in all respects if delivered or sent by facsimile to
000-000-0000 or by certified mail to Xxxxx & Steers Capital Advisors, LLC, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx, and, if to
the Company, shall be sufficient in all respects if delivered or sent to the
Company by facsimile to 000-000-0000 or by certified mail to the Company at 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: President.
11. Governing Law. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of New York, without regard to
conflict of laws principles.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only in a writing that is executed by each of the parties hereto.
13. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument. Executed
counterparts may be delivered by facsimile.
14. Construction. When used herein, the phrase "to the knowledge of"
the Company or "known to" the Company or any similar phrase means the actual
knowledge of the Chief Executive Officer, Chief Financial Officer or Chief
Operating Officer of the Company and includes the knowledge that such officers
would have obtained of the matter represented after reasonable due and diligent
inquiry of those employees of the Company whom such officers reasonably believe
would have actual knowledge of the matters represented.
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be executed and delivered as of the date first above written.
WINDROSE MEDICAL PROPERTIES TRUST
By:
--------------------------
Name:
Title:
SIGNATURE PAGE FOR PURCHASE AGREEMENT
DIRECT PURCHASERS
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE FOR PURCHASE AGREEMENT
Page 2
INVESTMENT ADVISERS
on behalf of itself (solely with respect
to paragraph 4) and each Client set
forth under its name on Schedule B
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE FOR PURCHASE AGREEMENT
CUSTOMERS
Each of the Several persons or entities
listed under the heading "Account Name" on
Attachment to Schedule C hereto
By: as agent and attorney-in-fact
By:
-----------------------------------
Name:
Title:
on behalf of itself and solely with respect
to paragraph 5
By:
-----------------------------------
Name:
Title:
SIGNATURE PAGE FOR PURCHASE AGREEMENT
Page 4
SCHEDULE A
NAME OF DIRECT PURCHASERS NUMBER OF SHARES
A-1
SCHEDULE B
NAME OF INVESTMENT ADVISER NUMBER OF SHARES
CLIENTS
B-1
SCHEDULE C
NAME OF BROKER DEALER: NUMBER OF SHARES
Customers for whom it is signing this Agreement as
agent and attorney-in-fact :
The amount set forth opposite such name on
Each of the several persons or entities set forth Attachment to Schedule C hereto under
under the heading "Account Name" on Attachment the heading "Amount" (in the aggregate)
to Schedule C hereto
C-1
SCHEDULE D
AGGREGATE PURCHASE AMOUNT
$
D-1
