EXHIBIT 1.1
WINDROSE MEDICAL PROPERTIES TRUST
1,700,000 Common Shares
Par Value $.01 per Share
UNDERWRITING AGREEMENT
March 15, 2005
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxx, Xxxxxxxx & Company, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
x/x Xxxxxx X. Xxxxx & Xx. Xxxxxxxxxxxx,
as Representative of the several Underwriters,
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Windrose Medical Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom Xxxxxx X. Xxxxx & Co. Incorporated is
acting as representative (the "Representative"), 1,700,000 shares of the
Company's common shares of beneficial interest, $0.01 par value per share (the
"Common Shares"), said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities". The Company also proposes to
grant to the Underwriters an option to purchase up to 255,000 additional Common
Shares to cover over-allotments (the "Option Securities"). The Option
Securities, together with the Underwritten Securities, are hereinafter referred
to as the "Securities." The Company is the general partner of Windrose Medical
Properties, L.P., a Virginia limited partnership (the "Operating Partnership"),
that serves as the Company's primary operating subsidiary.
1. REPRESENTATIONS AND WARRANTIES. The Company and the Operating
Partnership jointly and severally represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a Registration Statement
(as defined below) under the Act, including a form of prospectus relating
to the public offering and sale of certain securities to be issued from
time to time by the Company, including the Securities. The Company has
filed with the Commission such amendments to such Registration Statement
as may have been required prior to the date hereof. Such Registration
Statement has become effective under the Act. The Company also has filed,
or proposes to file, with the Commission pursuant to Rule 424(b) under the
Act, a final prospectus supplement supplementing the Base Prospectus
(as defined below) specifically relating to the offer and sale of the
Securities (the "Prospectus Supplement").
The term "Registration Statement" as used in this Agreement means
the registration statement on Form S-3 (Registration No. 333-112183)
(including all financial schedules and exhibits), as amended prior to the
execution of this Agreement, including all information (if any) deemed to
be a part of such Registration Statement at the time it became effective.
The term "Prospectus" as used in this Agreement means the form of
prospectus included in the Registration Statement at the time it was
declared effective (the "Base Prospectus") together with the Prospectus
Supplement relating to the offering of the Securities dated the date
hereof in the form first filed with the Commission on or after the date
hereof pursuant to Rule 424(b) under the Act. Any reference in this
Agreement to the Registration Statement, the Base Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the effective date of the Registration
Statement or the date of such Prospectus, as the case may be, and any
reference 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 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which, upon filing, are incorporated by reference therein
unless expressly stated otherwise, as required by paragraph (b) of Item 12
of Form S-3. As used herein, the term "Incorporated Documents" means the
documents, which are incorporated by reference in the Prospectus, or any
amendment or supplement thereto during the period the Prospectus is
required under the Act to be delivered in connection with the sale of the
Securities by the Underwriters or any dealer (the "Prospectus Delivery
Period").
(b) The Company meets the requirements for use of Form S-3 under the
Act. The Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued under the Act, and no proceedings for any such purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
(c) At the respective times the Registration Statement, and any
post-effective amendment thereto (filed before the Closing Date) became
effective and at the Closing Date (and, if any Option Securities are
purchased, at the Date of Delivery (defined herein)), the Registration
Statement, and all amendments and supplements thereto complied and will
comply in all material respects with the requirements of the Act and did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor any
amendment or supplement thereto, at the time the Prospectus or any such
amendment or supplement was issued and on the Closing Date (and, if any
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and
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warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company by or on
behalf of any Underwriter for use in the Registration Statement or
Prospectus and specifically identified in writing as such by the
Underwriters.
(d) All disclosures contained in the Registration Statement or the
Prospectus regarding "non-GAAP financial measures" (as such term is
defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act, and Item 10 of Regulation S-K under the
Act, to the extent applicable.
(e) The Incorporated Documents when they were filed (or, if any
amendment with respect to any such document was filed, when such amendment
was filed), conformed in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder, any
Incorporated Documents filed after the date hereof and during the
Prospectus Delivery Period will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the rules
and regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment
was filed) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading; and no such Incorporated Document filed
after the date hereof and during the Prospectus Delivery Period, when
filed, will contain an untrue statement of a material fact or will 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 under which
they were made, not misleading.
(f) The Company has been duly formed and is validly existing as a
real estate investment trust under and by virtue of the laws of the State
of Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland with full trust power and authority
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus. The Company is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification
except where the failure to be so qualified would not have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiaries (as
defined below), taken as a whole, whether or not arising from transactions
in the ordinary course of business (a "Material Adverse Effect"). Other
than the entities listed on Exhibit 21.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 2004, as amended (individually a
"Subsidiary" and collectively the "Subsidiaries" and for all purposes of
this Agreement, shall include the Operating Partnership), the Company does
not own, directly or indirectly, any capital stock or other equity
securities or interests of any corporation, partnership, limited liability
company, joint venture association or other entity.
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(g) Each Subsidiary has been duly organized and is validly existing
as a limited partnership, limited liability company or corporation in good
standing under the laws of its state of organization, with all requisite
power and authority to own and lease its properties, and conduct its
business as described in the Prospectus. Each Subsidiary has qualified to
do business and is in good standing as a foreign limited partnership,
limited liability company or corporation in every jurisdiction in which
the ownership or leasing of its properties or the nature or conduct of its
business, as described in the Prospectus, requires such qualification
except where the failure to be so qualified would not have a Material
Adverse Effect.
(h) The authorized, issued and outstanding shares of beneficial
interest of the Company as of December 31, 2004 are as set forth in the
Prospectus under the caption "Capitalization." All the issued and
outstanding Common Shares of the Company, including the Securities to be
sold by the Company, have been duly authorized and validly issued, and
are, or when issued against payment therefor as authorized by the
Company's Board of Trustees will be, fully paid and non-assessable. The
Common Shares of the Company conform in all material respects to the
description of the Common Shares contained in the Registration Statement
and the Prospectus. All offers and sales of the Company's Common Shares
prior to the date hereof were at all relevant times duly registered under
the Act or were exempt from the registration requirements of the Act and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky
laws. No preemptive rights of shareholders exist with respect to any of
the Securities under the Maryland General Corporation Law, the Declaration
of Trust (as hereinafter defined) or the bylaws of the Company. No person
or entity has a right of participation or first refusal with respect to
the sale of the Securities by the Company. None of the issued shares of
beneficial interest of the Company has been issued in violation of any
preemptive or similar rights. Except as described in the Registration
Statement and Prospectus, (i) there are no outstanding options, warrants
or other rights calling for the issuance of any shares of beneficial
interest of the Company or any security convertible into or exchangeable
for shares of beneficial interest of the Company and (ii) there is no
written commitment, plan or arrangement to issue any shares of beneficial
interest of the Company or any security convertible into or exchangeable
for shares of beneficial interest of the Company. The Operating
Partnership has not issued any security or other equity interest other
than units of limited partnership interest (the "Units") issued to the
Company and certain other persons that are redeemable at the option of the
holder thereof for cash, or, at the Company's option, for Common Shares on
a one-for-one basis. None of the Units in the Operating Partnership has
been or will be issued or is owned or held in violation of any preemptive
right. The outstanding Units in the Operating Partnership have been issued
by the Operating Partnership in compliance with applicable federal and
state securities laws.
(i) All the outstanding shares of capital stock, limited liability
company interests or partnership interests of each Subsidiary, as the case
may be, have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all such interests are owned by the Company either directly or
through wholly owned subsidiaries (except that the Company, directly or
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indirectly, owns a 92% interest in Brierbrook Partners, L.L.C. and a 51%
interest in WMPT Bellaire HP, L.P.) free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances; provided, however, that the Company's ownership interest in
WMPT Bellaire, L.P. and WMPT Bellaire POB, L.P. secure a mezzanine loan,
which is described in the Annual Report (defined below). No such equity
interest in any Subsidiary was issued in violation of the preemptive or
any similar right of any security holder of such Subsidiary.
(j) The Company has the trust power to enter into this Agreement and
to consummate the transactions contemplated herein. The Company has the
trust power to issue, sell and deliver the Securities as provided herein.
This Agreement has been duly authorized, executed and delivered by the
Company.
(k) The Operating Partnership has the full legal right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated herein. This Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(l) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as
required.
(m) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(n) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Prospectus.
(o) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to
(i) the Amended and Restated Declaration of Trust (the "Declaration of
Trust") or bylaws of the Company, the Certificate of Limited Partnership
or Amended and Restated Agreement of Limited Partnership, as further
amended and/or restated (the "Partnership Agreement") of the Operating
Partnership or any of the applicable organizational documents of any
Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of its Subsidiaries is a party or bound or to which its or their property
is subject, or (iii) any
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statute, law, rule, regulation, judgment, order or decree applicable to
the Company or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its Subsidiaries or any of
its or their properties, except in the case of clauses (ii) and (iii), to
the extent such conflicts, breaches, violations, liens, charges and
encumbrances, if any, would not have a Material Adverse Effect.
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(q) The consolidated historical financial statements and schedules
of the Company incorporated by reference in the Registration Statement and
Prospectus present fairly, in all material respects, the consolidated
financial position of the Company as of the dates indicated and the
consolidated results of operations and consolidated cash flows for the
Company for the periods specified, all in conformity with United States
generally accepted accounting principles applied on a consistent basis.
The financial statement schedules included in the Company's Annual Report
on Form 10-K for the year ended December 31, 2004, as amended (the "Annual
Report") have been compiled on a basis consistent with the financial
statements included in the Company's Annual Report incorporated by
reference in the Registration Statement and the Prospectus. No other
financial statements or schedules are required by Form S-3 or otherwise to
be included or incorporated by reference in the Registration Statement or
the Prospectus. The pro forma financial statements included in the
Prospectus and the Registration Statement include assumptions that provide
a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and
the pro forma adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the pro forma
financial statements included in the Prospectus and the Registration
Statement. The pro forma financial statements included in the Prospectus
and the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X under the
Act.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries or its or their property is pending or,
to the knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(s) Neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its charter or bylaws or applicable
organizational documents, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute,
law, rule,
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regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such Subsidiary or any of its
properties, as applicable, except in the case of clauses (ii) and (iii),
such violations or defaults as would not have a Material Adverse Effect.
(t) KPMG LLP, who has examined and reported upon the audited
financial statements and schedules of the Company and its consolidated
subsidiaries and upon the assessment of the Company's management of the
Company's internal control over financial reporting, including
Management's Report on Internal Control Over Financial Reporting contained
in the Company's Annual Report, incorporated by reference in the
Registration Statement and the Prospectus, are, and were during the
periods covered by its reports, an independent registered public
accounting firm within the meaning of the Act, the Exchange Act and the
respective rules and regulations of the Commission thereunder.
(u) There are no transfer taxes or other similar fees or charges
under federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Company or sale by the Company of
the Securities that have not been or will not be paid.
(v) The Company and each of its Subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or have
requested extensions thereof, except in any case in which the failure so
to file would not have a Material Adverse Effect, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
and has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty that
is currently being contested in good faith or as would not have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus.
(w) No labor problem or dispute with the employees of the Company or
any of its Subsidiaries exists or, to the Company and the Operating
Partnership's knowledge, is threatened or imminent, that could have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto dated after the date
hereof).
(x) The Company and each of its Subsidiaries, and their respective
properties, are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies of
insurance insuring the Company or any of its Subsidiaries or their
respective businesses, assets, employees, officers, trustees and directors
are in full force and effect; the Company and its Subsidiaries are in
compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights
clause except such
7
as would not have a Material Adverse Effect; and neither the Company nor
any such Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at an increase in cost that would not have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto dated after the date
hereof).
(y) The Company and its Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses except such licenses, certificates, permits
and authorizations the failure to possess would not, individually or in
the aggregate, have a Material Adverse Effect, and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto dated after the date hereof).
(z) The Company maintains an internal control over financial
reporting system that, as of December 31, 2004, was effective to provide
reasonable assurance to the Company's management and Board of Trustees
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally
accepted accounting principles.
(aa) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(bb) The Company and its Subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability under any
Environmental Laws, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto dated after the date hereof). Except
as set forth in the Prospectus, neither the Company nor any of the
Subsidiaries has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
(cc) In the ordinary course of its business, in connection with the
acquisition of properties, the Company periodically reviews the effect of
Environmental Laws on the
8
acquisition properties of the Company and its Subsidiaries, in the course
of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a Material Adverse Effect, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto
dated after the date hereof).
(dd) The Company and its Subsidiaries are in compliance in all
material respects with all currently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (herein called
"ERISA"); no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in Section 3(2) ERISA) for which
the Company or any Subsidiary would have any liability; the Company and
its Subsidiaries have not incurred and do not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended (the "Code"); and each "pension plan" for
which the Company or any Subsidiary would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by
failure to act, that would reasonably be expected to cause the loss of
such qualification.
(ee) Except with respect to certain non-timely filings of reports
required by Section 16 of the Exchange Act by certain of the Company's
trustees and executive officers, there is and has been no failure on the
part of the Company and any of the Company's trustees or officers, in
their capacities as such, to comply in all material respects with any
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the "Xxxxxxxx-Xxxxx Act").
(ff) The Company or its Subsidiaries have good and marketable title
in fee simple to each property described in the Prospectus (individually,
a "Property," and together the "Properties"), free and clear of all liens,
encumbrances, claims, security interests, restrictions and defects except
such as are disclosed in the Prospectus or do not, individually or in the
aggregate, materially affect the value of such Property and do not
interfere in any material respect with the use made and proposed to be
made of such Property by the Company or any Subsidiary. Neither the
Company nor any Subsidiary owns or leases any real property, except as
described in the Registration Statement or the Prospectus. Except as
disclosed in the Prospectus, no person has an option or right of first
refusal to purchase all or part of any of the Properties or any interest
therein. Each of the Properties complies with all applicable codes, laws
and regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties),
except if and to the extent disclosed in the Prospectus and except for
such failures to comply that would not have a Material Adverse Effect.
Each Property with respect to which a certificate of need or similar
approval to operate the Property is
9
required is presently, and at the Closing Date will be, operating pursuant
to a current, valid certificate of need or similar certificate. Neither
the Company nor any Subsidiary has knowledge of any pending or threatened
condemnation proceeding, zoning change, or other proceeding or action that
will in any manner affect the size of, use of, improvements on,
construction on or access to a Property, except such proceedings or
actions that would not have a Material Adverse Effect. The Company or a
Subsidiary has obtained an owner's title insurance policy from a title
insurance company, or, if such title insurance policy has not yet been
issued, a binding commitment by such title insurance company to issue such
a policy, in any event covering each Property, with coverage in an amount
at least equal to the cost of acquisition of such Property, including the
principal amount of any indebtedness assumed with respect to the Property.
(gg) Except as described in the Prospectus or to the extent the
existence of such lease would not interfere in any material respect with
the use made and proposed to be made of such Property by the Company or
any Subsidiary, the Company does not hold any Property under a ground
lease.
(hh) The Company or a Subsidiary owns or possesses all trademarks,
service marks, tradenames, trademark registrations, service xxxx
registrations, copyrights, licenses, trade secrets, processes and other
intangible property rights and know-how necessary for the conduct of its
business as described in the Registration Statement (collectively, the
"Intellectual Property"). Except as described in the Prospectus, (i) no
third parties have received rights to any such Intellectual Property from
the Company or any Subsidiary, other than licenses granted in the ordinary
course of business; (ii) to the Company's and the Operating Partnership's
knowledge, there is no infringement by third parties of any such
Intellectual Property, (iii) there is no pending or, to the Company's and
the Operating Partnership's knowledge, threatened action, suit, proceeding
or claim by others challenging the Company's or a Subsidiary's rights in
or to any such Intellectual Property, and the Company and the Operating
Partnership are unaware of any facts which would form a basis for any such
claim; (iv) there is no pending or, to the Company's and the Operating
Partnership's knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any such Intellectual
Property, and the Company and the Operating Partnership are unaware of any
facts which would form a basis for any such claim; and (v) there is no
pending or, to the Company's and the Operating Partnership's knowledge,
threatened action, suit, proceeding or claim by others that the Company or
any Subsidiary infringes or otherwise violates, or would infringe or
otherwise violate any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company and the Operating
Partnership are unaware of any facts which would form a basis for any such
claim.
(ii) Neither the Company, nor to the Company's knowledge, any
trustee, officer, agent, employee or other person associated with or
acting on behalf of the Company, has used any trust funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from trust funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977;
10
or made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment. No funds of the Company have been set aside to be used
for any payment in violation of any law.
(jj) The Securities have been approved for listing on The New York
Stock Exchange (the "NYSE") subject to official notice of issuance.
(kk) The Company and its Subsidiaries have good and marketable title
to all personal property owned by them, free and clear of all encumbrances
and defects; and all personal property held under lease by the Company or
any Subsidiary are held by it under valid, subsisting and enforceable
leases, in each case, with such exceptions as do not have a Material
Adverse Effect.
(ll) No material relationship, direct or indirect, exists between or
among the Company on the one hand, and the trustees, officers, or
shareholders of the Company on the other hand, which is required to be
described in the Prospectus and which is not so described; provided,
however, that pursuant to the rules promulgated under the Exchange Act,
the Company has not yet filed its proxy statement for the 2005 annual
meeting of shareholders, portions of which will be incorporated by
reference into the Company's Annual Report.
(mm) The statistical and market-related data included in the
Prospectus and the Registration Statement, if any, are based on or derived
from sources that the Company believes to be reliable and accurate.
(nn) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust under the Code, and
the Company's method of operation will enable it to meet the requirements
for taxation as a real estate investment trust under the Code. The
Operating Partnership and Brierbrook Partners, L.L.C. will be treated as
partnerships for federal income tax purposes and not as a corporation or
association taxable as a corporation. Hospital Affiliates Development
Corp. ("HADC") is organized and is owned in a manner that meets the
requirements for qualification as a taxable REIT subsidiary under the
Code, and HADC's method of operation will enable it to meet the
requirements for taxation as a taxable REIT subsidiary under the Code.
Any certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the
11
Company, at a purchase price of $13.18 per share (representing a public
offering price of $13.91 per share, less an underwriting discount of $0.73
per share), the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to 255,000 Option Securities in the aggregate at the same
purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time
on or before the 30th day after the date hereof upon written or
telegraphic notice by the Representative to the Company setting forth the
number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the Date of Delivery. The
number of Option Securities to be purchased by each Underwriter shall be
the same percentage of the total number of shares of the Option Securities
to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional
shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised before the Business Day, defined below, prior
to the Closing Date) shall be made at 10:00 a.m., Eastern time, on March 21,
2005, or at such time on such later date not more than three Business Days after
the foregoing date as the Representative shall designate, which date and time
may be postponed by agreement between the Representative and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the
Company. Delivery of the Underwritten Securities and the Option Securities shall
be made through the facilities of The Depository Trust Company unless the
Representative shall otherwise instruct. "Business Day" shall mean any day other
than a Saturday, Sunday, a legal holiday, or a day on which banking institutions
or trust companies are authorized or obligated by law to close in New York City.
If the option provided for in Section 2(b) hereof is exercised on or after
the Business Day prior to the Closing Date, the Company will deliver the Option
Securities (at the expense of the Company) to the Representative, at 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, on the date (the "Date of
Delivery") specified by the Representative (which shall be within three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the
Company. If settlement for the Option
12
Securities occurs after the Closing Date, the Company will deliver to the
Representative on the Date of Delivery for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus Supplement under the caption "Underwriting."
5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus or any registration statement pursuant to
Rule 462(b) of the Act unless the Company has furnished you a copy for
your review prior to filing. The Company will promptly advise the
Representative (1) when a Prospectus Supplement shall have been filed with
the Commission pursuant to Rule 424(b) of the Act, (2) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (3) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (4) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (5) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required under the Act to be delivered in connection with the sale of the
Securities by the Underwriters or any dealer, any event occurs as a result
of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the rules thereunder, the Company promptly will (1) notify the
Representative of any such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement or
omission or effect such compliance; and (3) supply any supplemented
Prospectus to the Underwriters in such quantities as the Underwriters may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its Subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
13
(d) The Company will furnish to the Representative and counsel for
the Underwriters, upon request, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter, upon
request, a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may
be required by the Act, as many copies of the Base Prospectus and any
Prospectus Supplement as the Representative may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Xxxxxx X. Xxxxx & Co. Incorporated, offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any person in privity with the Company or any affiliate of the Company),
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of
(except that the Underwriters hereby agree that the Company may file a
registration statement on Form S-8 relating to the Windrose Medical
Properties Trust 2002 Stock Incentive Plan (the "Stock Plan"), a
registration statement on Form S-3 relating to the Direct Stock Purchase
and Dividend Reinvestment Plan (the "DSPDR Plan") that the Company intends
to adopt shortly after the date hereof and/or a registration statement on
Form S-3 registering for continuous offer and sale at prevailing market
prices), or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any other Common Shares or any securities convertible
into, or exercisable, or exchangeable for, Common Shares; or publicly
announce an intention to effect any such transaction, for a period of 45
days after the date of the Prospectus, provided, however, that the Company
may issue and sell Common Shares, or securities exercisable or
exchangeable for Common Shares, pursuant to the Stock Plan, pursuant to
the Company's DSPDR Plan, upon redemption of the Units, upon the
conversion of securities or the exercise of warrants outstanding on the
date hereof, and in connection with the acquisition by the Company of
assets, and the Operating Partnership may issue Units in connection with
the acquisition of properties or assets.
(g) The Company will comply in all material respects with all
applicable securities and other applicable laws, rules and regulations,
including, without limitation, the Xxxxxxxx-Xxxxx Act, and to use its best
efforts to cause the Company's trustees and officers, in their capacities
as such, to comply in all material respects with such laws, rules and
regulations, including, without limitation, the provisions of the
Xxxxxxxx-Xxxxx Act.
14
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), Prospectus Supplement, the
Base Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, Prospectus Supplement, the Base Prospectus, and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
to which the Company is a party printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of
the Securities under the Exchange Act and the listing of the Securities on
the NYSE; (vi) any required registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD") (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the fees
and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company; and (x) all
other costs and expenses incident to the performance by the Company of its
obligations hereunder.
(j) The Company will use the net proceeds received by it from the
sale of Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities on the Closing Date or any Date of Delivery, as the case may be,
shall be subject to the accuracy of the representations and warranties on the
part of the Company and the Operating Partnership contained herein as of the
date hereof, the Closing Date and any Date of Delivery pursuant to Section 3
hereof, to the accuracy of the statements of the Company and the Operating
Partnership made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
15
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) of the Act, the Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b) of the Act; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Hunton & Xxxxxxxx
LLP, counsel for the Company, to have furnished to the Representative
their opinion, dated the Closing Date and addressed to the Representative,
in the form attached hereto as Exhibit A, and their opinion, dated the
Closing Date and addressed to the Representative, in form reasonably
satisfactory to the Representative, that the Company is qualified to be
taxed as a REIT pursuant to sections 856 through 860 of the Code for its
taxable year ended December 31, 2004 and that the Company's current
organization and proposed method of operation will enable it to continue
to qualify as a REIT for its taxable year ending December 31, 2005 and in
the future.
(c) The Representative shall have received from Bass, Xxxxx & Xxxx
PLC, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representative, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a
certificate, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct on and
as of the Closing Date with the same effect as if made on the
Closing Date, and the Company and the Operating Partnership have
complied with all the agreements and satisfied all the conditions on
their part to be performed or satisfied at or prior to the Closing
Date;
(ii) the Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its Subsidiaries taken as a whole,
16
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) On the date of this Agreement and on the Closing Date (including
any Date of Delivery, as the case may be) KPMG LLP shall have furnished to
the Representative, at the request of the Company, letters, dated the
respective dates of delivery thereof and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representative,
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided, that the letter
delivered on the Closing Date or any Date of Delivery, as the case may be,
shall use a "cut-off" date no more than three business days prior to such
Closing Date or such Date of Delivery.
(f) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its Subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representative, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the date hereof, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(h) The Securities shall have been listed, admitted and authorized
for trading on the NYSE, and satisfactory evidence of such actions shall
have been provided to the Representative.
(i) The NASD, upon review of the terms of the public offering of the
Securities, shall not have objected to such offering, such terms or the
Underwriters participation in the same.
(j) The Company shall have furnished to the Representative a letter
substantially in the form of Exhibit B hereto from Xxxx X. Klipsch and
Xxxxxxxxx X. Xxxxxx.
17
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered to the office of Bass, Xxxxx & Xxxx PLC, counsel for the Underwriters,
at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, on the Closing Date
and any Date of Delivery, as applicable.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or the Operating Partnership to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Xxxxxx X. Xxxxx & Co. Incorporated on demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Operating Partnership jointly and severally
agree to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who
controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or in the Prospectus
Supplement or the Base Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company and the Operating Partnership
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representative
18
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company and the Operating Partnership
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company and the Operating Partnership, each trustee
of the Company, each officer who signs the Registration Statement, and
each person who controls the Company and the Operating Partnership within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Operating Partnership to
each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representative specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company and Operating Partnership acknowledge that the
statements set forth in (i) the list of Underwriters and their respective
participation in the sale of the Securities set forth in the first
paragraph under the caption "Underwriting" and (ii) the third, eighth,
ninth and thirteenth paragraphs under the caption "Underwriting" in the
Prospectus Supplement and the Base Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Prospectus Supplement or the Base
Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other parties indemnified pursuant to this
Agreement which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party
19
to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Operating Partnership
and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, the Operating Partnership
and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company
and the Operating Partnership on the one hand and by the Underwriters on
the other from the offering of the Securities; provided, however, that in
no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company, the Operating
Partnership and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Operating Partnership
on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company
and the Operating Partnership shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information provided by the Company or by the
Operating Partnership on the one hand or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Operating Partnership and the Underwriters
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person
20
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or the Operating
Partnership within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement
and each trustee of the Company shall have the same rights to contribution
as the Company and the Operating Partnership, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the nondefaulting Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate number of Common Shares set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company or the Operating Partnership. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representative shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Shares shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on the
NYSE, (ii) a banking moratorium shall have been declared either by federal or
New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representative,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company and
the Operating Partnership or the officers of the Company and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or
21
on behalf of any Underwriter or the Company, the Operating Partnership or any of
the officers, trustees, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representative, will be mailed, delivered
or telefaxed to Xxxxxx X. Xxxxx & Co. Incorporated (fax no.: 000-000-0000) and
confirmed to it at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: General Counsel; or, if sent to the Company or the Operating
Partnership, will be mailed, delivered or telefaxed to Windrose Medical
Properties Trust (fax no.: 000-000-0000) and confirmed to it at Windrose Medical
Properties Trust, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxxxxx X. Xxxxxx, President (with a copy sent in the same manner
to Hunton & Xxxxxxxx LLP, Riverfront Plaza, East Tower, 000 X. Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq.).
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Operating Partnership and the several Underwriters.
Very truly yours,
WINDROSE MEDICAL PROPERTIES TRUST
By: /s/ Xxxx X. Klipsch
--------------------------------------------------
Name:
Title:
WINDROSE MEDICAL PROPERTIES, L.P.
By: Windrose Medical Properties Trust, General Partner
By: /s/ Xxxx X. Klipsch
--------------------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXX, XXXXX XXXXX, INCORPORATED
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
By: Xxxxxx X. Xxxxx & Co. Incorporated
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------
Name: XXXX X. XXXXXX, XX.
Title: MANAGING DIRECTOR
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
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SCHEDULE I
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxx X. Xxxxx & Co. Incorporated 595,000
Xxxxxx, Xxxxx Xxxxx, Incorporated 382,500
Xxxxxx, Xxxxxxxx & Company, Incorporated 382,500
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 340,000
---------
Total 1,700,000
