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EXHIBIT 1
HEALTHCARE REALTY TRUST INCORPORATED
$300,000,000 8.125% Senior Notes due 2011
UNDERWRITING AGREEMENT
May 10, 2001
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UNDERWRITING AGREEMENT
May 10, 2001
Banc of America Securities LLC
UBS Warburg LLC
First Union Securities, Inc.
Credit Suisse First Boston Corporation
AmSouth Bancorporation
Credit Lyonnais Securities (USA) Inc.
First Tennessee Securities Corporation
SouthTrust Securities Inc.
c/o Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Healthcare Realty Trust Incorporated, a Maryland corporation
(the "Company"), proposes to issue and sell to the underwriters named in
Schedule A annexed hereto (the "Underwriters") $300,000,000 aggregate principal
amount of its 8.125% Senior Notes due 2011 (the "Notes"). The Notes are to be
issued pursuant to an indenture to be dated as of May 15, 2001, between the
Company and First Union National Bank, as trustee (the "Trustee"), as
supplemented by a first supplemental indenture thereto to be dated as of May 15,
2001 (the "Indenture"). Copies of the Indenture, in substantially final form,
have been delivered to each of the Underwriters.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement (file
number 333-56608) on Form S-3 under the Act (the "registration statement"),
including a prospectus relating to common stock, common stock warrants,
preferred stock and debt securities of the Company, and such amendments to such
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registration statement as may have been required prior to the date hereof have
been similarly prepared and have been filed with the Commission. Such
registration statement, as so amended, and any post-effective amendments
thereto, have been declared by the Commission to be effective under the Act.
Such registration statement, as amended at the date of this Agreement meets the
requirements set forth in Rule 415(a)(1)(x) under the Act ("Rule 415") and
complies in all other material respects with said Rule. The Company will next
file with the Commission pursuant to Rule 424(b) under the Act a final
prospectus supplement to the basic prospectus included in such registration
statement, as so amended, describing the Notes and the offering thereof, in such
form as has been provided to or discussed with, and approved by the
Underwriters. The term "Registration Statement" as used in this Agreement means
the registration statement, as amended at the time it became effective, as
supplemented or amended prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents incorporated
by reference or deemed to be incorporated by reference therein. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed and must be declared
effective before the offering of the Notes may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. The term "Basic Prospectus" as used in this
Agreement means the prospectus dated March 22, 2001 forming a part of the
Registration Statement. The term "Prepricing Prospectus" as used in this
Agreement means the Basic Prospectus together with any preliminary form of
prospectus supplement specifically relating to the Notes, in the form first
filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of
the Rules and Regulations. The term "Prospectus Supplement" as used in this
Agreement means the prospectus supplement dated May 10, 2001 specifically
relating to the Notes, in the form first filed with, or transmitted for filing
to, the Commission pursuant to Rule 424 under the Act. The term "Prospectus" as
used in this Agreement means the Basic Prospectus together with the Prospectus
Supplement except that if such Basic Prospectus is amended or supplemented on or
prior to the date on which the Prospectus Supplement was first filed pursuant to
Rule 424, the term "Prospectus" shall refer to the Basic Prospectus as so
amended or supplemented and as supplemented by the Prospectus Supplement. Any
reference in this Agreement to the registration statement, the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the registration statement, the Registration
Statement, the Basic Prospectus, such Prepricing Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, and any reference to any
amendment or supplement to the registration statement, the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As
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used herein, the term "Incorporated Documents" means the documents which at
the time are incorporated by reference in the registration statement, the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the
Prospectus Supplement, the Prospectus, or any amendment or supplement thereto.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. The Company hereby agrees, subject to
all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of 98.484% of the principal
amount thereof (plus accrued interest from May 15, 2001, if any) (the "purchase
price"), the principal amount of Notes set forth opposite the name of such
Underwriter in Schedule A annexed hereto (or such principal amount of Notes as
may be increased as set forth in Section 8 hereof).
The Company is advised by you that the Underwriters intend (i)
to make a public offering of the Notes as soon after the date hereof as in your
judgment is advisable and (ii) initially to offer the Notes upon the terms set
forth in the Prospectus.
2. Payment and Delivery. Payment of the purchase price for the
Notes shall be made to the Company by Federal Funds wire transfer, against
delivery of the Notes to you through the facilities of The Depository Trust
Company ("DTC") for the respective accounts of the Underwriters. Such payment
and delivery shall be made at 10:00 A.M., New York City time, on May 15, 2001
(unless another time shall be agreed to by you or unless postponed in accordance
with the provisions of Section 8 hereof). The time at which such payment and
delivery are actually made is hereinafter sometimes called the "time of
purchase."
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by the Company.
(b) No order preventing or suspending the use of the Basic
Prospectus, any Prepricing Prospectus, the Prospectus Supplement or the
Prospectus is in effect and no proceedings for such purpose are pending
or, to the knowledge of the Company, threatened by the Commission or
the securities authority of any state or other jurisdiction. The
Registration Statement 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
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Company, threatened by the Commission or the securities authority of
any state or other jurisdiction.
(c) (i) The Company is eligible to use Form S-3 and the
offering of the Notes complies with the requirements of Rule 415, (ii)
each part of the Registration Statement, when such part became
effective, complied in all material respects with applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act
of 1939 (the "1939 Act"), (iii) each part of the Registration
Statement, when such part became effective, did not contain and each
such part, as may be 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, (iv) the Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement
and the Prospectus comply and, as may be amended or supplemented, if
applicable, will comply in all material respects with the Act and (v)
the Prospectus does not contain and, as may be 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 (c) do not apply to (x) statements or omissions
in the Registration Statement, the Basic Prospectus, any Prepricing
Prospectus, the Prospectus Supplement or the Prospectus based upon
information relating to any Underwriter furnished to the Company by
such Underwriter through you expressly for use therein or (y) the
Trustee's Statement of Eligibility and Qualification on Form T-1 (the
"Form T-1") under the 1939 Act.
(d) The Incorporated Documents, 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 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 not misleading.
(e) The Indenture has been duly and validly authorized and,
upon its execution and delivery by the Company and assuming due
execution and delivery by the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights generally or general
equitable
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principles; and the Indenture has been duly qualified under the 1939
Act and conforms in all material respects to the description thereof in
the Registration Statement and the Prospectus.
(f) The Notes have been duly authorized by the Company and,
when executed by the Company and authenticated by the Trustee in
accordance with the Indenture and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will have been
validly issued and delivered, and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles, and the Notes will conform in all material
respects to the description thereof in the Prospectus.
(g) The Company is duly organized, is validly existing as a
corporation in good standing under the laws of the State of Maryland
and has the corporate power and authority to acquire and own its
properties and the properties proposed to be invested in by the Company
and to lease such properties to others and to conduct its business, all
as described in the Prospectus, and to enter into and perform its
obligations under this Agreement, and the Company 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 business, operations, prospects, properties, condition (financial
or otherwise) or results of operation of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(h) The Company has no subsidiaries other than those
identified in Exhibit 21 to the Company's Annual Report on Form 10-K
for the year ended December 31, 2000 ("Exhibit 21"). The Company owns
all of the outstanding capital stock of each such subsidiary except as
set forth in Exhibit 21. Other than the subsidiaries referred to above,
the Company does not own, directly or indirectly, any shares of stock
or any other equity or long-term debt of any other corporation or have
any direct or indirect equity interest or ownership of long-term debt
in any firm, partnership, joint venture, limited liability company,
association or other entity, except as described in the Prospectus. All
of the shares of capital stock of, or other ownership interests in,
each subsidiary owned directly or indirectly by the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature.
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(i) Each subsidiary has been duly incorporated or organized
and is validly existing as a corporation or other entity, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, with the requisite corporate or other
power and authority to acquire and own its properties and the
properties proposed to be invested in by such subsidiary and to lease
such properties to others and to conduct its business, all as described
in the Registration Statement; each subsidiary 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 the ownership
or leasing of the property requires such qualification, except where
the failure to be so validly existing in its state of organization or
so qualified would not have a Material Adverse Effect.
(j) 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. 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.
(k) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein, (i) there
has been no material adverse and unfavorable change, financial or
otherwise, in the business, prospects, properties, condition (financial
or otherwise) or results of operations of the Company and its
subsidiaries taken as a whole, in each case whether or not arising in
the ordinary course of business, and (ii) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries.
(l) Neither (i) the Company nor any of its subsidiaries
(solely with respect to the subsidiaries, except as would not
individually or in the aggregate have a Material Adverse Effect), is in
violation of its respective articles of incorporation or bylaws or any
of its other organizational documents or (ii) except as would not
individually or in the aggregate have a Material Adverse Effect, 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 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 or assets are
bound or affected or in violation of any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or its subsidiaries.
(m) The Company and its subsidiaries have good and
indefeasible title in fee simple to the properties disclosed in the
Prospectus as being owned by them (the "Properties"), free and clear of
all liens, encumbrances, claims, mortgages, deeds of
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trust, restrictions, security interests and defects ("Property
Encumbrances"), except for: (x) the leasehold interests of lessees in
the Company's and its subsidiaries' properties held under lease (the
"Leases") and (y) any other Property Encumbrances that would not,
individually or in the aggregate, have a Material Adverse Effect or a
material adverse effect on such Property. All Property Encumbrances on
or affecting the Properties which are required to be disclosed in the
Prospectus are disclosed therein.
(n) Each of the Leases pertaining to the Properties has been
duly authorized by the Company or one of its subsidiaries, as
applicable, and is a valid and binding agreement of the Company or one
of its subsidiaries, as applicable, and, to the knowledge of the
Company, each other party thereto, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally or general equitable principles.
(o) The Company and its subsidiaries have title insurance on
all real properties described in the Prospectus as having been financed
by them pursuant to a mortgage loan in an amount at least equal to the
aggregate principal amount of each such mortgage loan or in an amount
at least equal to the aggregate acquisition price paid by the Company
or its subsidiaries for such Properties and the cost of construction of
the improvements located on such properties.
(p) To the 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.
(q) The issuance of the Notes and 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), or any other party (whether pursuant to
any contract to which the Company or any of its subsidiaries is a party
or by which its property or assets are bound or otherwise), except
where the failure to obtain such consent, approval, authorization or
other order would not individually or in the aggregate have a Material
Adverse Effect, 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 or other organizational documents of the
Company or any of its subsidiaries or, except as would not individually
or in the aggregate have a Material Adverse Effect, under any
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agreement, indenture or other instrument to which such person is a
party or by which such person or its property or assets is bound, or
violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to such person or its properties.
(r) Except as otherwise set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries or, to the Company's knowledge, any person from
whom the Company or any of its subsidiaries acquired any of the
Properties (a "seller"), or any lessee, sublessee or operator of any
Property or portion thereof is a party or of which any of the Company's
or any of its subsidiaries' property or assets or, to the knowledge of
the Company, any Property is the subject, and, to the Company's
knowledge, no such proceedings are threatened or contemplated which, if
determined adversely against the Company or its subsidiaries or such
seller, lessee, sublessee or operator would, individually or in the
aggregate, have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has, nor, to the Company's knowledge, any seller,
lessee, sublessee or operator 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 health care industry ("Health
Care Laws") and including foreign, federal, state or local law or
regulation relating to human health or safety or the environment or
Hazardous Materials, as defined below ("Environmental Laws") 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
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.
Neither the Company nor any of its subsidiaries, nor, to the Company's
knowledge, any seller, lessee, sublessee or operator 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, or a material adverse
effect on any of the Properties. No contract or document of a character
required to be described in the Registration Statement, the Prospectus
or any Incorporated Document or to be filed as an exhibit to the
Registration Statement or any Incorporated Document is not so
described, filed or incorporated by reference as required.
(s) Neither the Company nor any of its subsidiaries has
violated any federal or state law relating to discrimination in the
hiring, promotion or pay of
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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 might result in any
Material Adverse Effect.
(t) Except as otherwise set forth in the Prospectus, neither
the Company nor any of its subsidiaries, nor to the best of the
Company's knowledge, any seller, lessee, sublessee or operator 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.
(u) The Company and each of its subsidiaries and, to the
Company's knowledge, each of the operators, 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 Health Care Laws or 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 in the Prospectus, except where the failure to obtain such
permits would not individually or in the aggregate have a Material
Adverse Effect, or a material adverse effect on such Property; each of
the Company and each of its subsidiaries and, to 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 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.
(v) The Company and each of its subsidiaries maintains
reasonably adequate insurance for companies of its type, given the
nature of its business.
(w) Ernst & Young LLP are independent public accountants with
respect to the Company and its consolidated subsidiaries as required by
the Act.
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(x) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly in all
material respects the consolidated financial position, results of
operations, cash flows and changes in financial position of the Company
and its subsidiaries on the basis stated therein 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. All pro forma financial information included in the
Registration Statement and the Prospectus complies in all material
respects with the applicable accounting requirements 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. There are no financial statements,
historical or pro forma, that are required to be included in the
Registration Statement or the Prospectus and that are not included as
required.
(y) Except as described in the Prospectus, neither the Company
nor any of its subsidiaries has either given or received any
communication regarding the termination of, or intent not to renew, any
of the Leases pertaining to the Properties, any property operating
agreement or any other agreement between the Company or its
subsidiaries and the operators of its properties or facilities, and no
such termination or non-renewal has been threatened by the Company, any
of its subsidiaries or, to the Company's knowledge, any other party to
any such Lease, other than as would not have, individually or in the
aggregate, a Material Adverse Effect.
(z) 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.
(aa) The Company meets the requirements for qualification and
taxation as a real estate investment trust ("REIT") under the Internal
Revenue Code of 1986 (the "Code").
(bb) No holder of any security of the Company or any other
person has the right, contractual or otherwise, which right has not
been waived by the holder thereof, (A) to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of,
the Notes, or (B) as a result of the consummation of the transactions
contemplated by this Agreement, to require registration under the Act
of any securities of the Company.
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4. Certain Covenants of the Company. The Company hereby
agrees:
(a) if, at the time this Agreement is executed and delivered,
it is necessary that a post-effective amendment to the Registration
Statement be declared effective before the offering of the Notes may
commence, the Company will endeavor to cause such post-effective
amendment to become effective as soon as possible and will advise you
promptly and, if requested by you, will confirm such advice in writing,
when such post-effective amendment has become effective;
(b) to furnish such information as may be required and
otherwise to cooperate in qualifying the Notes for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Notes; provided that the Company
shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the Notes);
and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(c) to make available to the Underwriters in New York City as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto) as the Underwriters may reasonably request for the
purposes contemplated by the Act; in case any Underwriter is required
to deliver a prospectus beyond the nine-month period referred to in
Section 10(a)(3) of the Act in connection with the sale of the Notes,
the Company will prepare promptly upon request, but at its request,
such amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as
soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or Prospectus including by filing
any documents that would be incorporated
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therein by reference and to file no such amendment or supplement to
which you shall object in writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Notes, and
to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of three years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar form as may be designated by the Commission,
(iii) copies of documents or reports filed with any national securities
exchange on which any class of securities of the Company is listed, and
(iv) such other information as you may reasonably request regarding the
Company or its subsidiaries, in each case as soon as such
communications, documents or information becomes available; provided,
however, that in no case shall the Company be required to furnish
materials pursuant to this paragraph which are filed and publicly
accessible via EDGAR;
(h) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
Prospectus relating to the Notes is required to be delivered under the
Act which, in the judgment of the Company, would require the making of
any change in the Prospectus then being used, or in the information
incorporated therein by reference, so that the Prospectus would not
include an untrue statement of material fact or omit 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,
during such time, to prepare and furnish, at the Company's expense, to
the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to
furnish you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(i) to make generally available to its security holders, and
to deliver to you, an earnings statement (which need not be audited) of
the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months
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beginning after the date hereof, as soon as is reasonably practicable
after the termination of such twelve-month period;
(j) to furnish to you such number of conformed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) as you may reasonably request for
distribution to each of the other Underwriters; provided, however, that
in no case shall the Company be required to furnish materials pursuant
to this paragraph which are filed and publicly accessible via EDGAR;
(k) to furnish to you as early as practicable prior to the
time of purchase but not later than two business days prior thereto, a
copy of the latest available unaudited interim consolidated financial
statements, if any, of the Company and its subsidiaries which have been
reviewed by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 6(d) hereof;
provided, however, that in no case shall the Company be required to
furnish materials pursuant to this paragraph which are filed and
publicly accessible via EDGAR;
(l) to apply the net proceeds from the sale of the Notes in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(m) to pay all expenses, fees and taxes (other than any
transfer taxes and, except as set forth under Section 5 hereof and
clauses (iv) and (v) below, fees and disbursements of counsel for the
Underwriters) in connection with (i) the preparation and filing of the
Registration Statement, the Basic Prospectus, each Prepricing
Prospectus, the Prospectus Supplement, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the issuance, sale and delivery of
the Notes by the Company, (iii) the word processing and/or printing of
this Agreement, any Agreement Among Underwriters, any dealer
agreements, powers of attorney and the Indenture and the reproduction
and/or printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(iv) the qualification of the Notes for offering and sale under state
laws and the determination of their eligibility for investment under
state law as aforesaid (including the reasonable legal fees and filing
fees and other disbursements of counsel to the Underwriters) and the
printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) if
necessary, the filing for review of the public offering of the Notes by
the NASD (including the reasonable legal fees and filing fees and other
disbursements of counsel to the Underwriters), (vi) the preparation of
certificates for the Notes, (vii) the fees and expenses of the Trustee
and its counsel, (ix) the approval of the Notes by
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DTC for "book-entry" transfer, (x) the rating of the Notes by rating
agencies and (xi) the performance of the Company's other obligations
hereunder;
(n) that it has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Notes;
(o) to use its best efforts to continue to qualify as a REIT
under Sections 856 through 860 of the Code;
(p) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (e) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act; and
(q) to not, without the prior written consent of Banc of
America Securities LLC and UBS Warburg LLC, 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 decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the Notes
and the Company's proposed credit facility, as described in the
Prospectus) or publicly announce an intention to effect any such
transaction, within 30 days after the Closing Date.
5. Reimbursement of Underwriters' Expenses. If the Notes are
not delivered for any reason other than the termination of this Agreement
pursuant to clause (ii), (iii) or (iv) of the second paragraph of Section 7
hereof or pursuant to the last paragraph of Section 8 hereof or the default by
one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described in
Section 4 hereof, reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase, the performance by
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the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
opinions of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company, special securities counsel for the Company, as to
matters set forth on Annex A hereto, addressed to the Underwriters, and
dated the time of purchase with reproduced copies for each of the other
Underwriters and in form and substance satisfactory to Dewey Ballantine
LLP, counsel for the Underwriters.
(b) You shall have received at the time of purchase an
opinion, dated as of the time of purchase, of Stites & Harbison, PLLC,
special counsel to the Company regarding certain tax matters,
confirming the statements made under the caption "Certain Federal
Income Tax Considerations" in the Prospectus Supplement, "Federal
Income Tax and ERISA Considerations," and under Item 1 of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 2000,
incorporated by reference therein, under the headings "Federal Income
Tax Information," "ERISA Considerations" and "Status of the Company
under ERISA" and to the effect that the Company was and is organized in
conformity with the requirements for qualification as a REIT and its
method of operations as described in the Prospectus permits it to meet
the requirements for qualification and taxation as a REIT in
substantially the form set forth on Annex B hereto and of substance
satisfactory to Dewey Ballantine LLP, counsel for the Underwriters.
(c) You shall have received at the time of purchase an opinion
of Dewey Ballantine LLP, counsel for the Underwriters, dated the time
of purchase with respect to the issuance and sale of the Notes by the
Company, the Registration Statement, the Prospectus and such other
related matters as the Underwriters may require.
(d) You shall have received from Ernst & Young LLP, a letter
dated, respectively, the date of this Agreement and the time of
purchase, as the case may be, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in the forms approved
by you and your counsel.
(e) No amendment or supplement to the Registration Statement
or Prospectus, including documents deemed to be incorporated by
reference therein, shall have been to which you have objected in
writing.
(f) Prior to the time of purchase (i) no stop order with
respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d)
or 8(e) of the Act; (ii) the Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not
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contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iii) the Prospectus and all
amendments or supplements thereto, or modifications thereof, if any,
shall 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 are made, not misleading.
(g) Between the time of execution of this Agreement and the
time of purchase (i) no material and unfavorable change, financial or
otherwise (other than as referred to in the Registration Statement and
Prospectus), in the business, prospects, properties, condition of the
Company and its subsidiaries taken as a whole shall occur or become
known and (ii) no transaction which is material and unfavorable to the
Company and its subsidiaries taken as a whole shall have been entered
into by the Company or any of its subsidiaries.
(h) Between the time of execution of this Agreement and the
time of purchase there shall not have occurred any downgrading, nor
shall any notice or announcement have been given or made (other than as
may occur if the Notes are not sold pursuant to this Agreement) of (i)
any intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any of its
subsidiaries by any "nationally recognized statistical rating
organization," as that term is defined in Rule 436(g)(2) under the Act.
(i) The Company will, at the time of purchase, deliver to you
a certificate of two of its executive officers to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of such date, that the Company has
performed such of its obligations under this Agreement as are to be
performed at or before the time of purchase and the conditions set
forth in paragraphs (f), (g) and (h) of this Section 6 have been met.
(j) The Company will, at the time of purchase, deliver to you
a certificate signed by the chief financial officer and the chief
accounting officer of the Company substantially in such form approved
by you and counsel to the Underwriters, respecting the Company's
compliance, both prior to and after giving effect to the transactions
contemplated hereby, with the financial covenants set forth in the
Company's credit agreement and certain other agreements and instruments
respecting outstanding indebtedness of the Company and its
subsidiaries.
(k) The Company will, at the time of purchase, deliver to you
a certificate signed by the executive vice president and general
counsel of the Company
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substantially in such form approved by you and counsel to the
Underwriters, with respect to certain matters relating to the Company
and the subsidiaries.
(l) The Company and the Trustee shall have executed and
delivered the Indenture.
The Company shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase as you may
reasonably request.
7. Effective Date of Agreement; Termination. This Agreement
shall become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Notes (i) if, since the time of execution of this
Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus, (y) there has been any material adverse
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, prospects, properties,
condition (financial or otherwise) or results of operations of the Company and
its subsidiaries taken as a whole, which would, in your judgment or in the
judgment of such group of Underwriters, make it impracticable to market the
Notes, or (z) there shall have occurred any downgrading, or any notice shall
have been given of (a) any intended or potential downgrading (other than as may
occur if the Notes are not sold pursuant to this Agreement) or (b) any review or
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act (other than as may occur if the Notes are not
sold pursuant to this Agreement) or (ii) if, at any time prior to the time of
purchase, trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq shall have been suspended or limitations or minimum
prices shall have been established on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq or (iii) if, at any time prior to the time of
purchase, a banking moratorium shall have been declared either by the United
States or New York State authorities, or (iv) if, at any time prior to the time
of purchase, the United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material outbreak or
escalation of hostilities or other national or international calamity or crisis
of such magnitude in its effect on the financial markets of the United States
as, in your judgment or in the judgment of such group of Underwriters, to make
it impracticable to market the Notes.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified
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promptly by any standard form of telecommunication (which, if other than in
writing, will be promptly confirmed in writing by letter).
If the sale to the Underwriters of the Notes, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4, 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up and pay
for the Notes to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the principal amount of Notes which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total aggregate principal amount of Notes, the non-defaulting
Underwriters shall take up and pay for (in addition to the principal amount of
Notes they are obligated to purchase pursuant to Section 1 hereof) the principal
amount of Notes agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Notes shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such principal amount or amounts
as you may designate with the consent of each Underwriter so designated or, in
the event no such designation is made, such Notes shall be taken up and paid for
by all non-defaulting Underwriters pro rata in proportion to the aggregate
principal amount of Notes set opposite the names of such non-defaulting
Underwriters in Schedule A.
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Prospectus and other documents may be
effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate principal amount of Notes which the
defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the
total aggregate principal amount of Notes which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the
Company shall make arrangements within the five business day period stated above
for the purchase of all the Notes which the defaulting Underwriter or
Underwriters agreed to purchase hereunder, this Agreement shall be terminated
without
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further act or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors, officers, employees and agents and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained (y) in the
Registration Statement (as the same may at any time be amended or supplemented),
or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in the Registration Statement (as the same
may at any time be amended or supplemented) or necessary to make the statements
made therein not misleading or (z) in the Basic Prospectus, any Prepricing
Prospectus, any Prospectus Supplement or in the Prospectus (or in any of the
foregoing as the same may at any time be amended or supplemented), or arises out
of or is based upon any omission or alleged omission to state a material fact
required to be stated in the Basic Prospectus, any Prepricing Prospectus, any
Prospectus Supplement or the Prospectus (or in any of the foregoing as the same
may at any time be amended or supplemented) or necessary to make the statements
made therein, in the light of the circumstances in which they were made, not
misleading, and in the case of both clauses (y) and (z), except insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such Underwriter
in the Registration Statement, the Basic Prospectus, any Prepricing Prospectus,
any Prospectus Supplement or the Prospectus (or in any of the foregoing as the
same may at any time be amended or supplemented) or arises out of or is based
upon any omission or alleged omission to state a material fact in connection
with such information required to be stated in the Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, any Prospectus Supplement or the
Prospectus (or in any of the foregoing as the same may at any time be amended or
supplemented) or necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement made by the Company in Section 3 of
this Agreement or the failure by the Company to perform when and as required any
agreement or covenant contained herein or (iii) any untrue
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statement or alleged untrue statement of any material fact contained in any
audio or visual materials provided by the Company or based upon written
information furnished by or on behalf of the Company including, without
limitation, slides, videos, films, tape recordings, used in connection with the
marketing of the Notes; provided, however, that, solely with regard to clause
(i), the foregoing indemnity agreement with respect to any Basic Prospectus or
Prepricing Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting such losses, claims, damages or liabilities purchased
Notes, or any person controlling the Underwriter, if sufficient copies of the
Prospectus were timely delivered to such Underwriter pursuant to Section 4
hereof and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
given or sent to such person, if required by law to have been delivered, at or
prior to the written confirmation of the sale of the Notes 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.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
such Underwriter or such person shall promptly notify the Company in writing of
the institution of such Proceeding and the Company shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify the Company shall not relieve the Company from
any liability which the Company may have to any Underwriter or any such person
or otherwise. Such Underwriter or such person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the circumstances employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the Company (in which case the Company shall not have
the right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the Company and paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any such Proceeding effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless any Underwriter and any such person from and against any loss
or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any
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time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. 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 and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors, officers, employees and agents, and
any person who controls the Company within the meaning of Section 15 of the Act,
or Section 20 of the Exchange Act, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company or any such person may incur under the Act,
the Exchange Act, or common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished by or on behalf of such Underwriter through you to
the Company expressly for use with reference to such Underwriter in the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the
Prospectus Supplement or in the Prospectus (or in any of the foregoing as such
document may at any time be amended or supplemented) or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus
Supplement or the Prospectus (or in any of the foregoing as such document may at
any time be amended or supplemented) or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such
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Underwriter may have to the Company or any such person or otherwise. The Company
or such person shall have the right to employ its own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Company
or such person unless the employment of such counsel shall have been authorized
in writing by such Underwriter in connection with the defense of such Proceeding
or such Underwriter shall not have employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. 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) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the
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Company on the one hand and the Underwriters on the other hand from the offering
of the Notes 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 on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the total underwriting discounts and commissions received by
the Underwriters, bear to the aggregate public offering price is the Notes. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any claim or
Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement 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. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors, officers, employees or agents or any person (including each partner,
officer, director, employee or agent of such person) who controls any
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Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors, officers,
employees or agents or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Notes. The
Company and each Underwriter agree promptly to notify each other commencement of
any Proceeding against it and, in the case of the Company, against any of the
Company's officers, directors, employees or agents in connection with the
issuance and sale of the Notes, or in connection with the Registration Statement
or Prospectus.
10. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be deemed to have been duly
given if sent by any standard form of telecommunication (which, if other than in
writing, will be promptly confirmed in writing by letter) and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent both Banc
of America Securities LLC at 100 North Tryon Street, Charlotte, North Carolina
28255, Attention: General Counsel and to UBS Warburg LLC, 299 Park Avenue, New
York, New York 10171, Attention: Syndicate Department, with a copy to Dewey
Ballantine LLP, 1301 Avenue of the Americas, New York, New York 10019,
Attention: Frederick W. Kanner Esq., if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the Company
at 3310 West End Avenue, Seventh Floor, Nashville, Tennessee 37203, Attention:
David R. Emery, with a copy to Waller Lansden Dortch & Davis, a Professional
Limited Liability Company, Nashville City Center, 511 Union Street, Suite 2100,
Nashville, Tennessee 37219, Attention: Theodore W. Lenz, Esq.
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against an Underwriter or any
indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way
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arising out of or relating to this Agreement. The Company agrees that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and may be enforced in
any other courts in the jurisdiction of which the Company is or may be subject,
by suit upon such judgment.
13. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the Company and to
the extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, pursuant representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Information Furnished by the Underwriters. The statements
set forth in the last sentence on the penultimate paragraph on the cover page of
the Prospectus Supplement and the statements set forth in the third and six
paragraphs under the caption "Underwriting" in the Prospectus Supplement
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3 and 9 hereof.
15. Counterparts. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding
upon the Underwriters, the Company and their respective successors and assigns
and any successor or assign of any substantial portion of the Company's and any
of the Underwriters' respective businesses and/or assets.
17. Miscellaneous. Each of the Underwriters is not a bank.
Each of the Underwriters is separate entity from its lending and other
affiliates and is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by any of the Underwriters
are not deposits, are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
Lending affiliates of each of the Underwriters may have
lending relationships with issuers of securities underwritten or privately
placed by one or more of the Underwriters. To the extent required under the
securities laws, the Prospectus will disclose the existence of any such lending
relationships and whether the proceeds of the issue will be used to repay debts
owed to affiliates of any of the Underwriters.
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If the foregoing correctly sets forth the understanding
between the Company and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement between the Company and the Underwriters
severally.
Very truly yours,
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ ROGER O. WEST
----------------------------------------
Name: Roger O. West
Title: Executive Vice President and
General Counsel
Accepted and agreed to
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
FIRST UNION SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
AMSOUTH BANCORPORATION
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST TENNESSEE SECURITIES CORPORATION
SOUTHTRUST SECURITIES INC.
By: BANC OF AMERICA SECURITIES LLC By: UBS WARBURG LLC
By: /s/ LYNN T. MCCONNELL By: /s/ SCOTT P. WHITNEY
--------------------- ----------------------------------
Name: Lynn T. McConnell Name: Scott P. Whitney
Title: Managing Director Title: Associate Director
By: /S/ JOSEPH MOORE
--------------------------------
Name: Joseph Moore
Title: Associate Director
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SCHEDULE A
Principal
Amount of
Underwriter Notes
- ----------- -----------
Banc of America Securities LLC .................. 102,000,000
UBS Warburg LLC ................................. 102,000,000
First Union Securities, Inc. .................... 48,000,000
Credit Suisse First Boston Corporation .......... 24,000,000
AmSouth Bancorporation .......................... 6,000,000
Credit Lyonnais Securities (USA) Inc. ........... 6,000,000
First Tennessee Securities Corporation .......... 6,000,000
SouthTrust Securities Inc. ...................... 6,000,000
------------
Total $300,000,000
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