EXHIBIT 1.01
WINDROSE MEDICAL PROPERTIES TRUST
4,000,000 Shares a/
-
Common Shares
($0.01 par value)
Form of Underwriting Agreement
New York, New York
, 2003
Citigroup Global Markets Inc.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Windrose Medical Properties Trust, a Maryland real estate
investment trust (the "Company"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as Representatives, 4,000,000 shares of the
Company's common shares of beneficial interest, $0.01 par value ("Common
Shares"), (said shares to be issued and sold by the Company being hereinafter
called the "Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to 600,000 additional Common Shares to
cover over-allotments (the "Option Securities"; the Option Securities, together
with the Underwritten Securities, being hereinafter called the "Securities").
Certain terms used herein are defined in Section 17 hereof. To the extent there
are no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. The Company is the general partner of Windrose Medical
Properties, L.P. (the "Operating Partnership"), a Virginia limited partnership
that serves as the Company's primary operating partnership subsidiary.
--------------
a/ Plus an option to purchase from the Company, up to 600,000
-
Option Securities to cover over-allotments.
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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 prepared and filed with the Commission a
registration statement (file number 333-110612) on Form S-11, including
a related preliminary prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a related preliminary prospectus,
each of which has previously been furnished to you. The Company will
next file with the Commission one of the following: either (1) prior to
the Effective Date of such registration statement, a further amendment
to such registration statement (including the form of final prospectus)
or (2) after the Effective Date of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives
shall agree to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement
did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and,
on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date and any settlement date, the Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement, or the Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf
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of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) 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"). 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 except the Operating Partnership,
Brierbrook Partners, L.L.C. ("Brierbrook"), Hospital Affiliates
Development Corp. ("HADC"), Windrose 310 Properties, L.L.C., Windrose
4475 Sierra Properties, L.L.C., Windrose ▇▇▇▇▇▇ Properties, L.L.C.,
Windrose Coral Springs Properties, L.L.C., Windrose Medical Properties
Management, L.L.C., Windrose Morningside Properties, L.L.C., Windrose
Mount ▇▇▇▇▇▇ Properties, L.L.C., Windrose Ocala Urology Properties,
L.L.C., Windrose Park Medical Properties, L.L.C., Windrose Partell
Medical Center, L.L.C., Windrose SPE Mount ▇▇▇▇▇▇ Properties, Inc.,
Windrose ▇▇▇▇ Way Properties, L.L.C., WMPT Bellaire, L.P., WMPT
Bellaire Properties, L.L.C., WMPT Gateway, L.P., WMPT Gateway
Properties, L.L.C., WMPT Pearland, L.P., WMPT Pearland Properties,
L.L.C., WMPT Sacramento, L.P., WMPT Sacramento Properties, L.L.C., WMPT
Stone Oak, L.P., WMPT Stone Oak Properties, L.L.C., WMPT Tomball, L.P.,
WMPT Tomball Properties, L.L.C., WMPT Trinity, L.P., WMPT Trinity
Properties, L.L.C., Windrose ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Properties, L.L.C.,
Windrose St. Mary's Medical Professional Building, L.L.C., WMPT
Bellaire POB, L.P. and WMPT Bellaire POB Properties, L.L.C.
(individually a "Subsidiary" and collectively the "Subsidiaries").
(d) 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.
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(e) The authorized, issued and outstanding shares of
beneficial interest of the Company are as set forth in the Prospectus
under the caption "Capitalization." All the issued and outstanding
Common Shares of the Company, including the Securities to be sold by
the Company, have been duly authorized and validly issued, and are, or
when issued against payment therefor as authorized by the Company's
board of trustees will be, fully paid and non-assessable. The Common
Shares of the Company conform in all material respects to the
description of the Common Shares contained in the Registration
Statement and the Prospectus. All offers and sales of the Company's
shares of beneficial interest prior to the date hereof were at all
relevant times duly registered under the Act or were exempt from the
registration requirements of the Act and were duly registered or the
subject of an available exemption from the registration requirements of
the applicable state securities or blue sky laws. No preemptive rights
of shareholders exist with respect to any of the Securities under the
Maryland General Corporation Law, the Declaration of Trust (as
hereinafter defined) or the bylaws of the Company. No person or entity
has a right of participation or first refusal with respect to the sale
of the Securities by the Company. None of the issued shares of
beneficial interest of the Company has been issued in violation of any
preemptive or similar rights. Except as described in the Registration
Statement and Prospectus, (A) there are no outstanding options,
warrants or other rights calling for the issuance of any shares of
beneficial interest of the Company or any security convertible into or
exchangeable for capital stock of the Company and (B) there is no
written commitment, plan or arrangement to issue any shares of
beneficial interest of the Company or any security convertible into or
exchangeable for shares of beneficial interest of the Company. The
Operating Partnership has not issued any security or other equity
interest other than units of partnership interest issued to the Company
and certain other persons that are redeemable at the option of the
holder thereof for cash, or, at the Company's option, for Common Shares
on a one-for-one basis ("Units"). None of the Units in the Operating
Partnership has been or will be issued or is owned or held in violation
of any preemptive right. The outstanding Units in the Operating
Partnership have been issued by the Operating Partnership in compliance
with applicable federal and state securities laws.
(f) All the outstanding shares of capital stock, limited
liability company interests or partnership interests of each
Subsidiary, as the case may be, have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all such interests are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances. No such equity interest in
any Subsidiary was issued in violation of the preemptive or any similar
right of any security holder of such Subsidiary.
(g) 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.
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(h) 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.
(i) 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; and the statements in the Prospectus
under the headings "Description of Shares of Beneficial Interest,"
"Certain Provisions of Maryland Law and of Our Declaration of Trust and
Bylaws," "Partnership Agreement," "Federal Income Tax Consequences Of
Our Status as A REIT" and "Other Tax Consequences" insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries in all
material respects of such legal matters, agreements, documents or
proceedings.
(j) 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.
(k) 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.
(l) 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, as further amended and/or restated, (the "Declaration of Trust")
or bylaws of the Company, the Certificate of Limited Partnership or
Amended and Restated Agreement of Limited Partnership, as further
amended and/or restated (the "Partnership Agreement") of the Operating
Partnership or any of the applicable organizational documents of any
Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or
any of its Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its Subsidiaries or any of its or their
properties, except in the case of clauses (ii) and (iii), such
conflicts,
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breaches, violations, liens, charges and encumbrances as would not have
a Material Adverse Effect.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(n) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company and its consolidated subsidiaries as of the
dates and for the periods indicated, comply as to form in all material
respects with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The amounts in the
Prospectus under the captions "Summary Historical and Pro forma
Consolidated Financial Data", "Selected Historical Consolidated
Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" are accurately computed, fairly
present the information shown therein and have been determined on a
basis consistent with the financial statements included in the
Registration Statement. 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.
(o) 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).
(p) Neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its charter or bylaws or applicable
organizational documents, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is
a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other
7
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.
(q) KPMG, LLP, who have certified certain financial statements
of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements
and schedules included in the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(r) 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.
(s) The Company and each of its Subsidiaries have filed all
foreign, federal, state and local tax returns that are required to be
filed or have requested extensions thereof, except in any case in which
the failure so to file would not have a Material Adverse Effect, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect, except as
set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(t) 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).
(u) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance
insuring the Company or any of its Subsidiaries or their respective
businesses, assets, employees, officers, trustees and directors are in
full force and effect; the Company and its Subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause except such as would not have a Material Adverse
Effect; and neither the Company nor any such Subsidiary has any reason
to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as
8
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).
(v) 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).
(w) The Company and each of its Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(x) 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.
(y) The Company and its Subsidiaries are (i) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received and are in
compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability under any Environmental Laws, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto). Except as set forth in the Prospectus, neither
the Company nor any of the Subsidiaries has been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
9
(z) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and 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).
(aa) 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.
(bb) There is and has been no failure on the part of the
Company and any of the Company's trustees or officers, in their
capacities as such, to comply in all material respects. with any
provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Sarbanes Oxley
Act").
(cc) The Company or its Subsidiaries have good and marketable
title in fee simple to each property described in the Prospectus under
the caption "Our Existing Properties" and the improvements located
thereon (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. Except as disclosed in the prospectus, the
mortgages and deeds of trust encumbering the Properties described in
general in the Prospectus are not convertible and are not
cross-defaulted or cross-collateralized to any other Property. Neither
the Company nor any Subsidiary owns or leases any real property, except
as described in the Registration Statement or the Prospectus. Except as
disclosed in the Prospectus, no person has an option or
10
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
individually or in the aggregate materially affect the value of such
Property or interfere in any material respect with the use made and
proposed to be made of such Property by the Company or any Subsidiary.
Each Property with respect to which a certificate of need or similar
approval to operate the Property is required is presently, and at the
Closing Date will be, operating pursuant to a current, valid
certificate of need or similar certificate. Neither the Company nor any
Subsidiary has knowledge of any pending or threatened condemnation
proceeding, zoning change, or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction on
or access to a Property, except such proceedings or actions that would
not individually or in the aggregate materially affect the value of
such Property or interfere in any material respect with the use made
and proposed to be made of such Property by the Company or any
Subsidiary. The Company or a Subsidiary has obtained an owner's title
insurance policy from a title insurance company, or, if such title
insurance policy has not yet been issued, a binding commitment by such
title insurance company to issue such a policy, in any event covering
each Property, with coverage in an amount at least equal to the cost of
acquisition of such Property, including the principal amount of any
indebtedness assumed with respect to the Property.
(dd) Except as described in the Prospectus, the Company does
not hold any Property under a ground lease.
(ee) The Company or a Subsidiary owns or possesses all
trademarks, service marks, tradenames, trademark registrations, service
▇▇▇▇ 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
11
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.
(ff) Neither the Company, nor to the Company's knowledge, any
trustee, officer, agent, employee or other person associated with or
acting on behalf of the Company, has used any trust funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
trust funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment. No funds
of the Company have been set aside to be used for any payment in
violation of any law.
(gg) The Securities have been approved for listing on The New
York Stock Exchange (the "NYSE") subject to official notice of
issuance.
(hh) The Company and its Subsidiaries have good and marketable
title to all personal property owned by them, free and clear of all
encumbrances and defects; and all personal property held under lease by
the Company or any Subsidiary are held by it under valid, subsisting
and enforceable leases, in each case, with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property by the Company or the Subsidiary.
(ii) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the trustees, officers, or
shareholders of the Company on the other hand, which is required to be
described in the Prospectus and which is not so described.
(jj) The statistical and market-related data included in the
Prospectus and the Registration Statement are based on or derived from
sources that the Company believes to be reliable and accurate.
(kk) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under
the Code, and the Company's method of operation will enable it to meet
the requirements for taxation as a real estate investment trust under
the Code. The Operating Partnership and Brierbrook will be treated as
partnerships for federal income purposes and not as a corporation or
association taxable as a corporation. 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.
12
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$ 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 600,000 Option in the aggregate. Securities 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 of the Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. 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 on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time,
on , 2003, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. Delivery of the Underwritten Securities and
the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representatives (which shall be within
13
three Business Days after exercise of said option) for the respective accounts
of the several Underwriters, against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date for
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to
be filed, in a form approved by the Representatives, with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (5) 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 (6) 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
14
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the rules thereunder, the Company
promptly will (1) notify the Representatives of any such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance; and (3)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, upon request, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter, upon request, a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of
each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company), directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or
15
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
90 days after the date of the Prospectus, provided, however, that the
Company may issue and sell Common Shares, or securities exercisable or
exchangeable for Common Shares, pursuant to the Company's 2002 Stock
Incentive Plan, pursuant to the Company's dividend reinvestment plan in
effect at the Execution Time and upon the conversion of securities or
the exercise of warrants outstanding at the Execution Time, and the
Company may grant restricted shares in connection with the acquisition
by the Company of assets of a party that is not an affiliate of the
Company, but only if such party executes and delivers to Citigroup
Global Markets Inc., a Lock-up Agreement substantially in the form of
Exhibit A attached hereto with a term that expires 180 days after the
date of the Prospectus.
(g) The Company will comply in all material respects with all
applicable securities and other applicable laws, rules and regulations,
including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(h) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the 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, each Preliminary Prospectus,
the 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
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
16
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."
(k) Prior to the Closing Date, the Company shall promptly
provide the Underwriters and/or their counsel with copies or access to
all closing documents in respect of the purchase of each Acquisition
Property that closes prior to the Closing Date.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) the Company shall have requested and caused Hunton &
▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇▇▇, LLP, special
Maryland counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, in the form attached hereto as Exhibit B.
17
(c) The Representatives shall have received from ▇▇▇▇▇▇▇
Procter LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company
and the Operating Partnership in this Agreement are true and
correct on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company and the Operating
Partnership have complied with all the agreements and
satisfied all the conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) the Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect
on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, (i) confirming that they are independent accountants
within the meaning of the Act and the applicable rules and regulations
adopted by the Commission thereunder (ii) stating that, in their
opinion, the financial statements and any supplementary financial
information and schedules included in the Registration Statement and
covered by their opinion therein comply as to form in all material
respects with the applicable accounting requirements of the Act and
applicable Staff Accounting Bulletins and other official pronouncements
of the Commission, and (iii) containing such other
18
statements and information of the type ordinarily included in
accountants "comfort letters" to underwriters with respect to the
financial statements and financial and other information contained in
the Registration Statement, including that they have performed a review
of the unaudited interim financial information of the Company for the
nine-month period ended September 30, 2003, and as of September 30,
2003, in accordance with Statement on Auditing Standards No. 100.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
Subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto)
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(j) 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.
(k) The Company shall have furnished to the Representatives a
letter substantially in the form of Exhibit A hereto from each trustee
of the Company and each of the executive officers named in the
Registration Statement.
19
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters,
at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Operating
Partnership to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Citigroup Global Markets Inc. 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 any Preliminary Prospectus or the
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 Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company and the Operating Partnership may otherwise
have.
20
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company and the Operating Partnership, each
trustee of the Company, each officer who signs the Registration Statement, and
each person who controls the Company and the Operating Partnership within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Operating Partnership to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and Operating
Partnership acknowledge that the statements set forth in (i) the last paragraph
of the cover page regarding delivery of the Securities, (ii) the list of
Underwriters and their respective participation in the sale of the Securities
set forth in the first paragraph under the caption "Underwriting," (iii) the
first and second sentences related to concessions set forth in the third
paragraph under the caption "Underwriting" and (iv) the eighth, ninth and tenth
paragraphs related to stabilization, syndicate covering transactions and penalty
bids under the caption "Underwriting" in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
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 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 to represent the indemnified party within
a reasonable time after notice of the institution
21
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 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
22
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 amount of Securities set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company or the Operating Partnership. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Shares shall have
been suspended by the Commission or the NYSE or trading in securities generally
on the NYSE shall have been suspended or limited or minimum prices shall have
been established on the NYSE, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
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
23
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company, the Operating Partnership or any of the officers, trustees,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, 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.: ▇▇▇-▇▇▇-▇▇▇▇) and confirmed to it at Windrose Medical
Properties Trust, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President (with a copy sent in the same
manner to Hunton & ▇▇▇▇▇▇▇▇, Riverfront Plaza, East Tower, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
24
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
25
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:
--------------------------------
Name:
Title:
WINDROSE MEDICAL PROPERTIES, L.P.
By: Windrose Medical Properties Trust
By:
--------------------------------
Name:
Title:
26
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIGROUP GLOBAL MARKETS INC.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY INCORPORATED
By: Citigroup Global Markets Inc.
By:
-----------------------------------------
Name:
Title:
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Number of Underwritten Securities
Underwriters to be Purchased
------------ ---------------
Citigroup Global Markets Inc. ....................... 0
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated ................... 0
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated ............ 0
---------
Total ...................................... 4,000,000
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