Exhibit 1.1
356,347 Shares
Common Stock,
($.01 par value)
UNDERWRITING AGREEMENT
February 24, 1998
LEGG MASON WOOD WALKER, INCORPORATED
100 Light Street
Baltimore, Maryland 21202
The undersigned, Healthcare Realty Trust Incorporated, a Maryland
corporation (the "Company"), hereby confirms its agreement with you (the
"Underwriter") as follows:
1. Description of Shares. The Company proposes to issue and sell to you
356,347 shares of its Common Stock, par value $.01 per share (the "Shares"). The
Shares are more fully described in the Prospectus hereinafter defined. The
Underwriter intends (i) to deposit the Shares directly with the Trustee of Legg
Mason REIT Trust, February 1998 Series, a registered unit investment trust under
the Investment Company Act of 1940, as amended, as soon after the execution and
delivery hereof as in its judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus Supplement (as defined below).
2. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $26.7997 per
share, 356,347 Shares.
The Company will deliver definitive certificates for the Shares at such
place as you shall designate (the "Place of Closing"), for your account against
payment to the Company of the purchase price for the Shares sold to you by wire
transfer of immediately available funds to an account specified by the Company,
at 10:00 a.m., New York City time, on February 27, 1998, or at such other time
and date not later than three full business days thereafter as you and the
Company may agree, such time and date of payment and delivery being herein
called the "Closing Date."
The certificates for the Shares so to be delivered will be made available
to you for inspection at such other place as you and the Company may mutually
agree upon at least one full business day prior to the Closing Date and will be
in such names and denominations as you may request at least two full business
days prior to the Closing Date.
3. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to and agrees with you that:
(a) The Registration Statement (as defined below) has become effective
under the Act; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the Commission. The
registration statement on Form S-3 (Registration No. 33-97888) including a
prospectus, relating to (i) shares of common stock of the Company, par value
$.01 per share ("Common Stock"), (ii) warrants to purchase Common Stock, (iii)
shares of preferred stock of the Company, par value $.01 per share, and (iv)
debt securities of the Company (collectively, the "Shelf Securities") to be
issued from time to time by the Company, as amended at the date of this
Agreement is hereinafter referred to as the Registration Statement, and the
related prospectus covering the Shelf Securities in the form contained in the
Registration Statement at the time it was declared effective by the Commission
is hereinafter referred to as the Basic Prospectus. The Basic Prospectus as
supplemented by the prospectus supplement (the "Prospectus Supplement")
specifically relating to the offering of the Shares in the form first used to
confirm sales of the Shares is hereinafter referred to as the Prospectus. Any
reference in this Agreement to the Registration Statement, the Basic Prospectus,
any preliminary prospectus (a "preliminary prospectus") filed with the
Commission pursuant to Rule 424 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 which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
(b) (i) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Act and (iii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to the
Underwriter furnished to the Company in writing by the Underwriter expressly for
use therein.
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(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and none of such documents, when they were
filed with the Commission, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading; and
any further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act, as applicable, and will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Each preliminary prospectus filed as part of the Registration Statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects with the
Act, and did 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, in the light of the circumstances under which they were
made, not misleading.
(e) The Company and each of its subsidiaries are corporations that have
been duly organized, are validly existing as corporations in good standing under
the laws of the jurisdiction of incorporation of each such corporation and have
the corporate power and authority to acquire and own their respective properties
and the properties proposed to be invested in by the Company and its
subsidiaries and to lease such properties to others and to conduct their
business, all as described in the Prospectus, and, with respect to the Company,
to enter into and perform its obligations under this Agreement, and each such
corporation is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(f) On the date of this Agreement, the Company has no subsidiaries other
than HR of Texas, Inc., a Maryland corporation, HRT of Alabama, Inc., an Alabama
corporation, HRT of Tennessee, Inc., a Tennessee corporation, HRT of Virginia,
Inc., a Virginia corporation, HRT of Arkansas, Inc., an Arkansas corporation,
Healthcare Realty Management Incorporated, an Alabama corporation, HRT of
Florida, Inc., a Florida corporation, HRT of Delaware Inc., a Delaware
corporation, Healthcare Realty of Tennessee, L.P., a Tennessee limited
partnership, HR Interests, Inc., a Texas corporation, and HRT of Roanoke, Inc.,
a Virginia corporation and the Company owns all of the outstanding capital stock
of or other ownership interests in each such subsidiary. The Company also owns
approximately 99% of the value of the capital stock of Durham Medical Office
Building, Inc., a Texas corporation, HR Capital, Inc., a Texas corporation, HR
Assets, Inc., a Texas corporation and HR Funding, Inc. a Texas corporation. All
of the Shares of capital stock of, or other ownership interests in, each such
subsidiary owned by the Company have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature.
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(g) All the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable, and not
subject to any preemptive or similar rights; and the Shares have been duly
authorized and, when issued and delivered to the Underwriter against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in, or incorporated by reference
into, the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation of its
respective articles of incorporation or bylaws or in default in the performance
of any obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, to which the Company or any of its subsidiaries
is a party or by which it or any of its subsidiaries or their respective
property is bound.
(j) The Company or one of its subsidiaries, as applicable, has good and
indefeasible title in fee simple to the properties listed under the caption
"Properties" in the Company's prospectus supplement, dated February 11, 1997, to
the Prospectus (the "Properties"), free and clear of all liens, encumbrances,
claims, mortgages, deeds of trust, restrictions, security interests and defects
("Property Encumbrances"), except for: (x) the Leases (as defined in the
Company's prospectus supplement, dated February 11, 1997, to the Prospectus),
(y) any other Property Encumbrances that would not, individually or in the
aggregate, have a material adverse effect on such Property. All Property
Encumbrances on or affecting the Properties which are required to be disclosed
or incorporated by reference in the Prospectus are disclosed or incorporated by
reference therein.
(k) Each of the Leases pertaining to the Properties has been duly
authorized by the Company and its subsidiaries, as applicable, and is a valid
and binding agreement of the Company or one of its subsidiaries, as applicable,
enforceable in accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by applicable law and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally, and is subject to general
principals of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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(l) To the best knowledge of the Company, no lessee of any portion of any
of the Properties is in default under its respective lease and there is no event
which, but for the passage of time or the giving of notice or both, would
constitute a default under any such lease, except such defaults that would,
individually or in the aggregate, not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(m) The execution, delivery and performance, compliance with all the
provisions of, and the consummation of all the transactions contemplated by this
Agreement will not require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental body
(except as such may be required under the securities or Blue Sky laws of the
various states), except where the failure to obtain such consent, approval,
authorization or other order would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the articles of incorporation or bylaws of the Company or any of its
subsidiaries or any material agreement, indenture or other instrument to which
such person is a party or by which such person or its property is bound, or
violate or conflict with any laws, administrative regulations or rulings or
court decrees applicable to such person or its properties. The foregoing
representation, to the extent it relates to any person other than the Company
and its subsidiaries, is made to the best knowledge of the Company.
(n) Except as otherwise set forth or incorporated by reference in the
Prospectus, there are no material legal or governmental proceedings pending to
which the Company or any seller or sublessee of any Property or portion thereof
is a party or of which any of the Company's or any of its subsidiaries' property
or, to the best knowledge of the Company, any Property is the subject, and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated. Neither the Company nor any of its subsidiaries has, and, to the
best of the Company's knowledge, any seller or sublessee of any Property, or
portion thereof or any previous owner thereof has, received from any
governmental authority notice of any material violation of any municipal, state
or federal law, rule or regulation (including without limitation any such law,
rule or regulation applicable to the healthcare industry and including
Environmental Laws, as defined in paragraph (o) below) concerning the
Properties, or any part thereof which has not heretofore been cured, and neither
the Company nor any of its subsidiaries and, to the best of the Company's
knowledge, each such other person, does not know of any such violation, or any
occurrence or circumstance that would give rise to a claim under or pursuant to
any Environmental Laws, which would, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
Neither the Company nor any of its subsidiaries, nor, to the best of the
Company's knowledge, any seller or sublessee of any Property, or portion thereof
has, received from any governmental authority any written notice of any
condemnation of or zoning change affecting the Properties, or any part thereof
and the Company does not know of any such condemnation or zoning change which is
threatened and which if consummated would have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or any of the Properties. No
contract or document of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement is not so described, filed or incorporated by reference as required.
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(o) Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any seller or sublessee of any Property or portion
thereof has violated any foreign, federal, state or local law or regulation
relating to human health or safety or the environment or Hazardous Materials (as
defined in paragraph (p) below) ("Environmental Laws") in connection with any
Property, nor has the Company nor any of its subsidiaries violated any federal
or state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in any case might result in any
material adverse change in the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole.
(p) Except as otherwise set forth or incorporated by reference in the
Prospectus, neither the Company nor any of its subsidiaries, nor to the best of
the Company's knowledge, any seller or sublessee of any Property or portion
thereof has knowledge of (i) the presence of any hazardous or toxic substances
or wastes, pollutants or contaminants ("Hazardous Materials") at, on or under
any of the Properties or (ii) any spills, releases, discharges or disposal of
Hazardous Materials at, on or under or occurring in connection with any of the
Properties, other than those that would not have, individually or in the
aggregate, a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(q) The Company and each of its subsidiaries and, to the best of the
Company's knowledge, each of the Lessees or sublessees of any Property or
portion thereof has such permits, licenses, approvals, certificates, franchises
and authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any Environmental Laws, as are necessary in
the case of each such party, as the case may be, to acquire and own, lease or
sublease, lease to others and conduct its business, all as described or
incorporated by reference in the Prospectus, except where the failure to obtain
such permits would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or such Property; each of the Company and each
of its subsidiaries and, to the best of the Company's knowledge, of the Lessees
or sublessees of any Property or portion thereof has fulfilled and performed all
of its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of the rights
of the holder of any such permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no restrictions that are
materially burdensome to the Company and its subsidiaries, taken as a whole.
Each of the Properties, and the current and intended use and occupancy thereof,
complies with all applicable zoning laws, ordinances and regulations in all
material respects, except where such failure does not materially impair the
value of the applicable Property and will not result in a forfeiture or
reversion of title.
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(r) The Company and each of its subsidiaries maintains reasonably adequate
insurance for companies of its type, given the nature of its business.
(s) Ernst & Young LLP are independent public accountants with respect to
the Company and its consolidated subsidiaries as required by the Act.
(t) The financial statements, together with related schedules and notes
forming part of or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated or incorporated
by reference in the Registration Statement at the respective dates or for the
respective periods to which they apply and have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein. The unaudited pro forma financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus comply in all material respects with the applicable
accounting requirements of Article 11 of Regulation S-X of the Commission and
the pro forma adjustments have been properly applied to the historical amounts
in the compilation of such amounts. The other financial and statistical
information and data set forth or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) is, in
all material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company and its
subsidiaries.
(u) The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(v) The Company meets the requirements for qualification and taxation as a
REIT under the Code.
(w) Except as disclosed or incorporated by reference in the Prospectus, no
holder of any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company, except for warrants
to purchase 152,312 shares of Common Stock issued by the Company in 1993 in
connection with the purchase of certain real property.
(x) The Company has not (i) taken, directly or indirectly, any action, in
violation of any securities law, designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (ii) since the initial filing of
the Registration Statement (A) sold, bid for, purchased or paid anyone, in
violation of any securities law, any compensation for soliciting purchases of,
the Shares or (B) paid or agreed to pay to any person, in violation of any
securities law, any compensation for soliciting another to purchase any other
securities of the Company.
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4. Additional Covenants. The Company covenants and agrees with you that:
(a) The Company will (i) prepare a Prospectus Supplement setting forth the
number of Shares covered thereby and their terms not otherwise specified in the
Prospectus pursuant to which the Shares are being issued, the name of the
Underwriter and the number of Shares which the Underwriter has agreed to
purchase, the price at which the Shares are to be purchased by the Underwriter
from the Company and such other information as the Underwriter and the Company
deem appropriate in connection with the offering of the Shares, and file the
Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no
later than the Commission's close of business on the second business day
following the date of the determination of the offering price of the Shares;
(ii) during any period in which the Prospectus is required by law to be
delivered in connection with an offering or sale of Shares by an underwriter or
dealer, not file any amendment to the Registration Statement or supplement to
the Prospectus of which you shall not previously have been advised and furnished
with a copy or to which you shall have reasonably objected in writing or which
is not in compliance with the Rules and Regulations; and (iii) during any period
in which the Prospectus is required by law to be delivered in connection with an
offering or sale of Shares by an underwriter or dealer, promptly notify you
after it shall have received notice thereof of the time when any amendment to
the Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
(b) During any period in which the Prospectus is required by law to be
delivered in connection with an offering or sale of Shares by an underwriter or
dealer, the Company will advise you promptly, after it shall receive notice or
obtain knowledge thereof, of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any additional
information, or of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the use of the Prospectus or
of the institution or threatening of any proceedings for that purpose, and
during any period in which the Prospectus is required by law to be delivered in
connection with an offering or sale of Shares by an underwriter or dealer, the
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
(c) Prior to any public offering of the Shares, the Company will cooperate
with you and your counsel in endeavoring to qualify the Shares for sale under
the securities laws of such jurisdictions as they may have designated and will
make such applications, file such documents, and furnish such information as may
be necessary for that purpose, provided the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent or to subject itself to taxation as doing business in any
jurisdiction where it is not now so taxed. The Company will, from time to time,
file such statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as required for
distribution of the Shares.
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(d) During the period in which the Prospectus is required by law to be
delivered in connection with the offering or sale of Shares by an underwriter or
dealer, the Company will deliver to you, without charge as many copies of the
Prospectus (including all documents incorporated by reference therein), or as it
thereafter may be amended or supplemented, as you may from time to time
reasonably request. The Company consents to the use of such Prospectus by you,
both in connection with the offering or sale of the Shares and for such other
purposes and for such period of time thereafter as the Prospectus is required by
law to be delivered in connection with the offering or sale of the Shares by an
underwriter or dealer. The Company will deliver to you at or before the Closing
Date one conformed copy of the Registration Statement and all amendments thereto
including all exhibits filed therewith or incorporated by reference therein and
all documents incorporated by reference in the Prospectus and will deliver to
you such number of copies of the Registration Statement, without exhibits, and
of all amendments thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by law to be
delivered in connection with an offering or sale of Shares by an underwriter or
dealer, any event shall occur as a result of which, in the judgment of the
Company or in your judgment or in the opinion of your counsel, it becomes
necessary to amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any time to
amend or supplement the Prospectus to comply with any law, the Company promptly
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its shareholders and will
file as an exhibit in a report pursuant to the Exchange Act, as soon as it is
reasonably practicable to do so, but in any event not later than 15 months after
the date of the Prospectus Supplement, an earnings statement in reasonable
detail, covering a period of at least 12 consecutive months beginning after the
date of the Prospectus Supplement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations and will advise you in writing when such statement has been so made
available.
(g) The Company will, for a period of five years from the Closing Date,
deliver to you at your principal executive offices a reasonable number of copies
of annual reports, quarterly reports, current reports and copies of all other
documents, reports and information furnished by the Company to its shareholders
or filed by the Company with the Commission pursuant to the Act or the Exchange
Act. The Company will deliver to you similar reports with respect to any
significant subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company financial statements; provided
however, that during any period in which generally accepted accounting
principles or related auditing standards do not require that a Specified
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Affiliate (as defined below) of the Company be accounted for as a subsidiary for
purposes of the consolidated financial statements of the Company and its
subsidiaries, the term "significant subsidiary" shall not include any Specified
Affiliate of the Company for purposes of this paragraph (g). For purposes
hereof, "Specified Affiliate" means any corporation, association or other
business entity formed for the purpose of earning income not qualified as "rents
from real property" under applicable provisions of the Code, in which the
Company owns substantially all of the economic interest but less than 10% of the
voting interests, and the remaining economic and voting interests are subject to
restrictions requiring that ownership of such interests be held by officers,
directors or employees of the Company. Any report, document or other information
required to be furnished under this paragraph (g) shall be furnished as soon as
practicable after such report, document or information becomes available or
filed.
(h) The Company will apply the proceeds from the sale of the Shares as set
forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(i) The Company will supply you with copies of all correspondence to and
from, and all documents issued to and by, the Commission in connection with the
registration of the Shares under the Act.
(j) The Company will use its best efforts to obtain approval for, and
maintain the listing of the Shares for a period of at least five years after the
date of the Prospectus Supplement on, the New York Stock Exchange.
(k) During any period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will promptly file all
documents required to be filed with the Commission pursuant to Sections 13, 14
or 15(d) of the Exchange Act.
5. Conditions of Underwriter's Obligation. Your obligations, as Underwriter
to purchase and pay for the Shares, as provided herein, shall be subject to the
accuracy in all material respects, as of the date hereof and as of the Closing
Date, of the representations and warranties of the Company contained herein, and
to the following additional conditions:
(a) All filings of the Prospectus required by Rule 424 of the Rules and
Regulations shall have been made. No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time, shall have been issued
and no proceeding for that purpose shall have been initiated or, to your
knowledge or the knowledge of the Company, threatened or contemplated by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company on or prior to
the Closing Date, that the Registration Statement or Prospectus or any amendment
or supplement thereto contains an untrue statement of fact which, in the opinion
of your counsel, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
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(c) On the Closing Date, you shall have received one or more opinions from
counsel for the Company addressed to you and dated the Closing Date as to the
respective matters set forth in Schedule I attached hereto.
(d) You shall have received on the Closing Date, from Hunton & Williams,
your counsel, such opinion or opinions, dated the Closing Date with respect to
the incorporation of the Company, the validity of the Shares, the Registration
Statement, the Prospectus and other related matters as you may reasonably
require; the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on such matters.
(e) You shall have received at or prior to the Closing Date from Hunton &
Williams a memorandum or memoranda, in form and substance satisfactory to you,
with respect to the qualification for offering and sale by you of the Shares
under state securities or Blue Sky laws of such jurisdictions as you may have
designated to the Company.
(f) On the date of this Agreement and on the Closing Date, you shall have
received from Ernst & Young LLP, a letter or letters, dated the date of this
Agreement and the Closing Date, respectively, in form and substance satisfactory
to you, confirming that they are independent public accountants with respect to
the Company within the meaning of the Act and the published Rules and
Regulations, and stating to the effect set forth in Schedule II hereto.
(g) Except as contemplated in or incorporated by reference into the
Prospectus, (i) neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree; and (ii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company nor any of its subsidiaries shall have incurred any material
liability or obligation, direct or contingent, or entered into material
transactions, and there shall not have been any change in the capital stock or
long-term debt of the Company and its subsidiaries or any material change in the
condition (financial or other), net worth, business, affairs, management,
prospects or results of operations of the Company or its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
on the Closing Date on the terms and in the manner contemplated in the
Prospectus.
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(h) There shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or the establishing on such exchanges by
the Commission or by such exchanges of minimum or maximum prices which are not
in force and effect on the date hereof; (ii) a general moratorium on commercial
banking activities declared by either federal or New York State authorities;
(iii) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in your judgment is
material and adverse and makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares in the manner contemplated in
the Prospectus; (iv) any calamity or crisis, change in national, international
or world affairs, act of God, change in the international or domestic markets,
or change in the existing financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in this
clause (iv) is material and adverse and makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares in the manner
contemplated in the Prospectus; or (v) the enactment, publication, decree, or
other promulgation of any federal or state statute, regulation, rule, or order
of any court or other governmental authority, or the taking of any action by any
federal, state or local government or agency in respect of fiscal or monetary
affairs, if the effect of any such event specified in this clause (v) in your
judgment is material and adverse and makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares in the manner
contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing Date and signed
by the President and the Chief Financial Officer of the Company stating that (i)
they have carefully examined the Registration Statement and the Prospectus as
amended or supplemented and all documents incorporated by reference therein and
nothing has come to their attention that would lead them to believe that either
the Registration Statement or the Prospectus, or any amendment or supplement
thereto or any documents incorporated by reference therein as of their
respective effective, issue or filing dates, contained, and the Prospectus as
amended or supplemented and all documents incorporated by reference therein and
when read together with the documents incorporated by reference therein, at the
Closing Date, contains any untrue statement of a material fact, or omits 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, that (ii) all representations and warranties made
herein by the Company are true and correct in all material respects at the
Closing Date, with the same effect as if made on and as of the Closing Date, and
all agreements herein to be performed by the Company on or prior to the Closing
Date have been duly performed in all material respects.
(j) The Company shall not have failed, refused, or been unable, at or prior
to the Closing Date to have performed in all material respects any agreement on
their part to be performed or any of the conditions herein contained and
required to be performed or satisfied by them at or prior to the Closing Date.
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(k) The Company shall have furnished to you at the Closing Date such other
certificates as you may have reasonably requested as to the accuracy, on and as
of the Closing Date, of the representations and warranties of the Company herein
and as to the performance by the Company of their obligations hereunder.
(l) The Shares shall have been approved for trading upon official notice of
issuance on the New York Stock Exchange. All such opinions, certificates,
letters and documents will be in compliance with the provisions hereof only if
they are reasonably satisfactory to you and to Chapman and Cutler, your counsel.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you may request.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Underwriter furnished in writing to the Company by or on behalf of the
Underwriter through you expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of the Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Shares, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
(b) In case any action shall be brought against the Underwriter or any
person controlling the Underwriter based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company, the
Underwriter shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses. The
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Underwriter
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or such controlling person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named parties
to any such action (including any impleaded parties) include both the
Underwriter or such controlling person and the Company and the Underwriter or
such controlling person shall have been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to assume the defense of such action on behalf of the
Underwriter or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the Underwriter and controlling persons, which firm shall be
designated in writing by the Underwriter and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall not be liable for
any settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless the Underwriter and any such controlling person from and
against any loss or liability by reason of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriter but only with reference to information relating to
such Underwriter furnished in writing by or on behalf of the Underwriter
expressly for use in the Registration Statement, the Prospectus, any preliminary
prospectus. In case any action shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company based on the
Registration Statement, the Prospectus, any preliminary prospectus and in
respect of which indemnity may be sought against the Underwriter, the
Underwriter shall have the rights and duties given to the Company (except that
if the Company shall have assumed the defense thereof, the Underwriter shall not
be required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Underwriter), and the Company, its directors, any such officers
and any person controlling the Company shall have the rights and duties given to
the Underwriter, by Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is unavailable to
an indemnified party in respect of any losses, claims, damages, liabilities or
judgments referred to therein, then each indemnifying party, in lieu of
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indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriter on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriter in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriter shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the
Underwriter, bear to the total price to the public of the Shares, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and the Underwriter shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company or the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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.
7. Representations and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company contained herein or in certificates
delivered pursuant hereto, and your agreements contained in Section 6 hereof,
shall remain operative and in full force and effect regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of you or any controlling person, the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of the Shares
to you hereunder.
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8. Effective Date and Termination.
(a) This Agreement shall become effective upon execution by each of the
parties hereto.
(b) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company if any condition specified in Section 5
hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections 8(b), you shall
notify the Company by telephone or telegram, confirmed by letter.
9. Cost and Expenses. The Company will bear and pay the costs and expenses
incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company, (b) the
preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto (c) the furnishing of copies of such documents to you, (d)
the registration or qualification of the Shares for offering and sale under the
securities laws of the various states, including the reasonable fees and
disbursements of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) and the Commission in connection with
their review of the proposed offering of the Shares, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all initial transfer taxes, if
any, (h) all fees and expenses relating to the authorization of the Shares for
trading on the New York Stock Exchange, (i) all travel expenses, including air
fare and accommodation expenses, of representatives of the Company in connection
with the offering of the Shares and (j) all of the other costs and expenses
incident to the performance by the Company of the registration and offering of
the Shares; provided, however, that you will bear and pay the fees and expenses
of your counsel (other than fees and disbursements relating to the registration
or qualification of the Shares for offering and sale under the securities laws
of the various states), your out-of-pocket expenses, and any advertising costs
and expenses incurred by you incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the provisions of
Section 8(b), the Company shall reimburse you for all of your reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of your
counsel.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
c/o Legg Mason Wood Walker, Incorporated, Attention: Syndicate Department, 100
Light Street, Baltimore, Maryland 21202, facsimile number (410) 454-5157, or if
sent to the Company shall be mailed, delivered, sent by facsimile transmission,
or telegraphed and confirmed to the Company at 3310 West End Avenue, Suite 700,
Nashville, TN 37203, Attention: President, facsimile number (615) 269-8122.
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11. Parties. This Agreement shall inure to the benefit of and be binding
upon you and the Company and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, corporation or other entity, other than the parties hereto and
their respective successors and assigns and the controlling persons, officers
and directors referred to in Section 6, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained;
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and said controlling persons and said officers
and directors, and for the benefit of no other person, corporation or other
entity. No purchaser of any of the Shares from you shall be construed a
successor or assign by reason merely of such purchase.
12. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
13. Pronouns. Whenever a pronoun of any gender or number is used herein, it
shall, where appropriate, be deemed to include any other gender and number.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and you.
HEALTHCARE REALTY TRUST
INCORPORATED
By: /s/ David R. Emery
Name: David R. Emery
Title: Chief Executive Officer
LEGG MASON WOOD WALKER, INCORPORATED
By: /s/ Edwin J. Bradley
Name: Edwin J. Bradley
Title: Vice President
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