|
<PAGE>
EXHIBIT 1.01
WINDROSE MEDICAL PROPERTIES TRUST
DOCS(R) FINANCING PROGRAM
1,200,000, COMMON SHARES OF BENEFICIAL INTEREST,
$0.01 PAR VALUE
SALES AGREEMENT
MAY 19, 2005
DOCS(R) is a registered service mark of Brinson Patrick
Securities Corporation
<PAGE>
THIS SALES AGREEMENT (the "Agreement") dated as of May 19, 2005
between
Brinson Patrick Securities Corporation, having its principal
office at 330
Madison Avenue, 9th Floor, New York, New York 10017 (the "Sales
Manager") and
Windrose Medical Properties Trust, a real estate investment
trust formed and
existing under the laws of the State of Maryland (the
"Company").
WHEREAS, the Company desires to issue and sell through the Sales
Manager
up to 1,200,000 shares (the "Maximum Amount") of its common
shares of beneficial
interest, $0.01 par value per share (the "Stock"), on the terms
set forth in
Article II below. The Maximum Amount shall be appropriately
adjusted for stock
splits and reverse splits.
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the
Company and the Sales Manager agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
1.1 For purposes of this Agreement, unless the context requires
to the
contrary, the term "Company" shall also include all significant
subsidiaries (as
defined by Section 1-02 of Regulation S-X) of the Company. The
Company
represents and warrants to, and agrees with, the Sales Manager
that:
(a) The Company meets the requirements for use of Form S-3 under
the
Securities Act of 1933, as amended (the "Act"), and the rules
and regulations
thereunder ("Rules and Regulations"). A registration statement
on Form S-3
(Registration No. 333-______) with respect to the Stock,
including a form of
prospectus, has been prepared by the Company in conformity with
the requirements
of the Act and the Rules and Regulations and filed with the
Securities and
Exchange Commission (the "Commission") and has become effective.
Such
registration statement and prospectus may have been amended or
supplemented
prior to the date hereof. Any such amendment or supplement was
so prepared and
filed, and any such amendment or supplement filed after the
effective date of
such registration statement and prior to the date hereof has
become effective.
No stop order suspending the effectiveness of such registration
statement has
been issued, and no proceeding for that purpose has been
instituted or, to the
knowledge of the Company, threatened by the Commission. Such
registration
statement, as it may have heretofore been or may hereafter be
amended, is
referred to herein as the "Registration Statement," and the
final form of
prospectus included in the Registration Statement solely for
purposes of offers
and sales by the Sales Manager of the Stock as contemplated
herein, as amended
or supplemented from time to time, is referred to herein as the
"Prospectus."
The term "Prospectus" shall not include any prospectuses
contained in the
Registration Statement relating to sales of Stock by other
parties under other
continuous offering programs. Any reference herein to the
Registration
Statement, the Prospectus, or any amendment or supplement
thereto shall be
deemed to refer to and include the documents incorporated (or
deemed to be
incorporated) by reference therein, and any reference herein to
the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement
or Prospectus shall be deemed to refer to and include the filing
after the
execution hereof of any document with the Commission deemed to
be incorporated
by reference therein.
<PAGE>
(b) (1) Each part of the Registration Statement, when such part
became or
becomes effective, and the Prospectus and any amendment or
supplement thereto,
on the date of filing thereof with the Commission and at each
Settlement Date
(as hereinafter defined), conformed or will conform in all
material respects
with the requirements of the Act and the Rules and Regulations;
each part of the
Registration Statement, when such part became or becomes
effective, did not or
will not contain an untrue statement of a material fact or omit
to state a
material fact required to be stated therein or necessary to make
the statements
therein not misleading; and the Prospectus and any amendment or
supplement
thereto, on the date of filing thereof with the Commission and
at each
Settlement Date, did not or will not include 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;
except that the foregoing shall not apply to statements in or
omissions from any
such document in reliance upon, and in conformity with, written
information
furnished to the Company by or on behalf of the Sales Manager,
specifically for
use in the Registration Statement, the Prospectus or any
amendment or supplement
thereto; (2) if applicable, the Company's principal executive
officer and
principal financial officer have each delivered to the
Commission a sworn
statement in writing (the "Statement"), in compliance with SEC
Order, File No.
4-460: Order Requiring the Filing of Sworn Statements Pursuant
to Section
21(a)(1) of the Securities Exchange Act of 1934, in the form of
Exhibit A
thereto, and have each reviewed the contents of their respective
Statements with
the Company's audit committee or, in the absence of such a
committee, the
independent members of the Company's board of directors.
(c) The documents incorporated by reference in the Registration
Statement
or the Prospectus, or any amendment or supplement thereto, when
they were or are
filed with the Commission under the Securities Exchange Act of
1934, as amended
(the "Exchange Act"), conformed or will conform in all material
respects with
the requirements of the Act or the Exchange Act, as applicable,
and the rules
and regulations of the Commission thereunder.
(d) The financial statements of the Company, together with the
related
schedules and notes thereto, set forth or included in the
Registration Statement
and Prospectus, fairly present the financial condition of the
Company as of the
dates indicated and the results of operations, changes in
financial position,
stockholders' equity, and cash flows for the periods therein
specified, in
conformity with generally accepted accounting principles
consistently applied
throughout the periods involved (except as otherwise stated
therein). The
summary and selected financial and statistical data included in
the Registration
Statement and the Prospectus present fairly the information
shown therein and,
to the extent based upon or derived from the financial
statements, have been
compiled on a basis consistent with the financial statements
presented therein.
(e) The accountants who certified the financial statements and
the
supporting schedules included in the Registration Statement are
and, during the
periods covered by their reports, were qualified and independent
public
accountants as required by Rule 2-01 of Regulation S-X.
(f) The Company has been duly formed and is validly existing as
a real
estate investment trust in good standing under the laws of the
State of
Maryland. The Company is duly qualified and in good standing as
a foreign trust
in each jurisdiction in which the character or location of its
assets or
properties (owned, leased or licensed) or the nature of its
business makes such
qualification necessary, except for such jurisdictions where the
failure to so
qualify would not have a Material Adverse Effect on the Company.
For purposes of
this Agreement, "Material Adverse Effect" means any adverse
effect on the
business, operations, properties or financial condition of the
Company that is
(either alone or together with all other adverse effects)
material to the
Company and its
2
<PAGE>
subsidiaries taken as a whole, and any material adverse effect
on the
transactions contemplated under this Agreement or any other
agreement or
document contemplated hereby or thereby. Each of the Company's
significant
subsidiaries is validly existing as a corporation, limited
liability company or
partnership, as applicable, in its respective jurisdiction of
formation.
Schedule 1.1(f) hereto identifies each of the Company's
subsidiaries that is a
significant subsidiary (as defined in Section 1-02 of Regulation
S-X) of the
Company. All of the issued and outstanding capital stock,
limited liability
company interests or partnership interests, as applicable, of
each significant
subsidiary has been duly authorized and validly issued, is fully
paid and
nonassessable and (except as otherwise disclosed in the
Registration Statement
and the Prospectus) is owned by the Company, directly or
indirectly (except as
disclosed in the Company's reports filed with the Commission
under the Exchange
Act), free and clear of any security interest, mortgage, pledge,
lien,
encumbrance, claim or equity; provided, however that the
Company's ownership
interest in certain significant subsidiaries may be used to
secure certain
indebtedness. Except as disclosed in the Registration Statement
and the
Prospectus, the Company does not own, lease or license any asset
or property or
conduct any business outside the United States of America. The
Company has all
requisite corporate power and authority and all necessary
authorizations,
approvals, consents, orders, licenses, certificates and permits
of and from all
governmental orders or regulatory bodies or any other person or
entity, to own,
lease, license and operate its assets and properties and conduct
its business as
now being conducted and as described in the Registration
Statement and the
Prospectus, except for such authorizations, approvals, consents,
orders,
licenses, certificates and permits the absence of which would
not have a
Material Adverse Effect.
(g) The Company has good and marketable title to, or leasehold
interests
in, all properties and assets (including, without limitation,
mortgaged assets)
as described in the Registration Statement and the Prospectus
owned by the
Company, free and clear of all liens, charges, encumbrances or
restrictions,
except such as are described in the Registration Statement and
the Prospectus
and except such as would not have a Material Adverse Effect;
provided, however,
that the Company's ownership interest in certain significant
subsidiaries may be
used to secure certain indebtedness. The Company has such
consents, easements,
rights-of-way or licenses (collectively, "rights-of-way") from
any person as are
necessary to conduct its business in the manner described in the
Registration
Statement, except for those which if not obtained would not,
singly or in the
aggregate, have a Material Adverse Effect.
(h) [INTENTIONALLY OMITTED]
(i) There is no litigation or governmental or other proceeding
or, to the
Company's knowledge, investigation before any court or before or
by any public
body or board pending or, to the knowledge of the Company,
threatened against,
or involving the assets, properties or businesses of the Company
which would
have a Material Adverse Effect except as described in the
Registration
Statement.
(j) The Company maintains insurance (issued by insurers of
recognized
financial responsibility) of the types and in the amounts
generally deemed
adequate for its businesses and, to the knowledge of the
Company, consistent
with insurance coverage maintained by similar companies in
similar businesses,
including, but not limited to, insurance covering real and
personal property
owned or leased by the Company against theft, damage,
destruction, acts of
vandalism and all other risks customarily insured against, all
of which
insurance is in full force and effect.
3
<PAGE>
(k) Subsequent to the respective dates as of which information
is given in
the Registration Statement and the Prospectus, except as
described therein, (i)
there has not been any change in the assets or properties,
business, results of
operations, or condition (financial or otherwise) of the
Company, whether or not
arising from transactions in the ordinary course of business
that has had a
Material Adverse Effect; (ii) the Company has not sustained any
material loss or
interference with its assets, businesses or properties (whether
owned or leased)
from fire, explosion, earthquake, flood or other calamity,
whether or not
covered by insurance, or from any labor dispute or any court or
legislative or
other governmental action, order or decree; (iii) the Company
has not undertaken
any material liability or obligation, direct or contingent,
except such
liabilities or obligations undertaken in the ordinary course of
business; and
(iv) there has not been any transaction that is material to the
Company, except
transactions in the ordinary course of business or as otherwise
disclosed in the
Registration Statement and the Prospectus.
(l) There is no document or contract 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 that is not described or
filed as
required. Each document, instrument, contract and agreement of
the Company
described in the Registration Statement or the Prospectus or
incorporated by
reference therein or listed as exhibits to the Registration
Statement is in full
force and effect and is valid and enforceable by and against the
Company in
accordance with their terms, assuming the due authorization,
execution and
delivery thereof by each of the other parties thereto except as
otherwise
disclosed in the Registration Statement or Prospectus or
otherwise as would not
have a Material Adverse Effect. The Company is not, nor to the
knowledge of the
Company is any other party, in default in the observance or
performance of any
term or obligation to be performed by it under any such
agreement, and no event
has occurred which with notice or lapse of time or both would
constitute such a
default, which default or event would have a Material Adverse
Effect. No default
exists, and no event has occurred which with notice or lapse of
time or both
would constitute a default, in the due performance and
observance of any term,
covenant or condition, by the Company of any other agreement or
instrument to
which the Company is a party or by which it or its properties or
business may be
bound or affected, which default or event would have a Material
Adverse Effect.
(m) The Company is not in violation of any term or provision of
its
charter, by-laws or operating agreement, as applicable. The
Company is not in
violation of any franchise, license, permit, judgment, decree,
order, statute,
rule or regulation, where the consequences of such violation
would have a
Material Adverse Effect.
(n) Neither the execution, delivery and performance of this
Agreement by
the Company nor the consummation of any of the transactions
contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the
Stock) will give rise to a right to terminate or accelerate the
due date of any
payment due under, or conflict with or result in the breach of
any term or
provision of, or constitute a default (or an event which with
notice or lapse of
time or both would constitute a default) under, or require any
consent or waiver
under, or result in the execution or imposition of any lien,
charge,
encumbrance, claim, security interest, restriction or defect
upon any properties
or assets of the Company pursuant to the terms of, any
indenture, mortgage, deed
of trust or other agreement or instrument to which the Company
is a party or by
which the Company is bound, or any of its properties or
businesses are bound, or
any franchise, license, permit, judgment, decree, order,
statute, rule or
regulation applicable to the Company or violate any provision of
the charter or
by-laws of the Company, except for such consents or waivers
which have already
been obtained and are in full force and effect.
4
<PAGE>
(o) All of the outstanding common shares of beneficial interest
of the
Company have been duly authorized and validly issued and are
fully paid and
nonassessable and none of such shares were issued in violation
of any preemptive
or other similar right. The Stock, when issued and sold pursuant
to this
Agreement, will be duly authorized and validly issued, fully
paid and
nonassessable and will not be issued in violation of any
preemptive or other
similar right. Except as disclosed in the Registration Statement
and the
Prospectus, there is no outstanding option, warrant or other
right calling for
the issuance of, and there is no commitment, plan or arrangement
to issue, any
capital stock of the Company or any security convertible into or
exercisable or
exchangeable for such capital stock, except for standard
dividend reinvestment
plans. The Stock conforms in all material respects to all
statements relating
thereto contained in the Registration Statement and the
Prospectus.
(p) Subsequent to the respective dates as of which information
is given in
the Registration Statement and the Prospectus, except as (x)
described or
referred to therein, or (y) are not material (as to clauses (i)
and (ii) only),
are consistent with past practice (as to clauses (i) and (ii)
only), and are
publicly disclosed (as to clause (iii) only), the Company has
not (i) issued any
securities or incurred any liability or obligation, direct or
contingent, except
such liabilities or obligations incurred in the ordinary course
of business
including, without limitation, debt financing to acquire and
develop properties,
(ii) entered into any transaction not in the ordinary course of
business or
(iii) declared or paid any dividend or made any distribution on
any shares of
its capital stock or redeemed, purchased or otherwise acquired
or agreed to
redeem, purchase or otherwise acquire any shares of its capital
stock.
(q) Except as disclosed in the Registration Statement and
Prospectus, no
holder of any security of the Company has the right, which has
not been waived,
to have any security owned by such holder included in the
Registration
Statement.
(r) All necessary corporate action has been taken by the Company
to
authorize the execution, delivery and performance of this
Agreement and the
issuance and sale of the Stock by the Company. This Agreement
has been duly and
validly authorized, executed and delivered by the Company and
constitutes and
will constitute the legal, valid and binding obligation of the
Company,
enforceable against the Company in accordance with its terms.
Except for any
"blue sky" filings or stock exchange listing applications to be
filed pursuant
hereto, each approval, consent, order, authorization,
designation, declaration
or filing by or with any regulatory, administrative or other
governmental body
necessary in connection with the execution and delivery by the
Company of this
Agreement and the consummation of the transactions contemplated
hereby and the
issuance and sale of the Stock by the Company has been obtained
or made and is
in full force and effect.
(s) The Company has not incurred any liability for a fee,
commission or
other compensation on account of the employment of a broker or
finder in
connection with the transactions contemplated by this Agreement
other than as
contemplated hereby or as described in the Registration
Statement.
(t) The Company is conducting its business in compliance with
all
applicable laws, rules and regulations of the jurisdictions in
which it is
conducting business, except where the failure to be so in
compliance would not
have a Material Adverse Effect.
(u) No transaction has occurred between or among the Company and
any of
its officers or directors or any affiliate or affiliates of any
such officer or
director that is required to be described in and is not
described in the
Registration Statement and the Prospectus.
5
<PAGE>
(v) The Company has not taken, nor will it take, directly or
indirectly,
any action designed to or which might reasonably be expected to
cause or result
in, or which has constituted or which might reasonably be
expected to
constitute, the stabilization or manipulation of the price of
the common shares
of beneficial interest of the Company to facilitate the sale or
resale of any of
the Stock in violation of any rules or regulations of the
Commission.
(w) The Company has filed all federal, state, local and foreign
tax
returns that are required to be filed through the date hereof
(and will file all
such tax returns when and as required to be filed after the date
hereof), or has
received extensions thereof, and has paid all taxes shown on
such returns to be
due on or prior to the date hereof (and will pay all taxes shown
on such returns
to be due after the date hereof) and all assessments received by
it to the
extent that the same have become due except where the failure to
file such a
return or pay such amount would not have a Material Adverse
Effect or the
Company is contesting in good faith the payment of any such
amounts.
(x) The Company has met the qualification requirements for a
"real estate
investment trust" during its taxable years ending on or after
December 31, 1999
and its proposed method of operations will enable it to continue
to meet the
requirements for qualification and taxation as a "real estate
investment trust"
under the Internal Revenue Code of 1986, as amended (the
"Code"), assuming no
change in the applicable underlying law. The Company does not
know of any event
that would cause or is likely to cause the Company to fail to
qualify as a "real
estate investment trust."
(y) The Company is not an "investment company" within the
meaning of the
Investment Company Act of 1940, as amended.
(z) The Company's systems of internal accounting controls taken
as a whole
are sufficient to meet the broad objectives of internal
accounting control
insofar as those objectives pertain to the prevention or
detection of errors or
irregularities in amounts that would be material in relation to
the Company's
financial statements; and, to the best of the Company's
knowledge, neither the
Company nor any employee or agent thereof has made any payment
of funds of the
Company or received or retained any funds, and no funds of the
Company have been
set aside to be used for any payment, in each case in violation
of any law, rule
or regulation.
(aa) The Company is not involved in any labor dispute and, to
the
knowledge of the Company, no such dispute has been threatened,
except for such
disputes as would not have a Material Adverse Effect on the
Company.
(bb) Except as disclosed in the Registration Statement or the
Prospectus,
(i) there has been no storage, disposal, generation,
manufacture, refinement,
transportation, handling or treatment of toxic wastes, hazardous
wastes or
hazardous substances by the Company or any of its subsidiaries
(or to the
knowledge of the Company, any of their predecessors in interest)
at, upon or
from any of the property now or previously owned or leased by
the Company or its
subsidiaries in violation of any applicable law, ordinance,
rule, regulation,
order, judgment, decree or permit or which would require
remedial action under
any applicable law, ordinance, rule, regulation, order,
judgment, decree or
permit, except for any violation or remedial action which would
not have a
Material Adverse Effect; (ii) there has been no material spill,
discharge, leak,
emission, injection, escape, dumping or release of any kind onto
such property
or into the environment surrounding such property of any toxic
wastes, solid
wastes, hazardous wastes or hazardous substances due to or
caused by the Company
or
6
<PAGE>
any of its subsidiaries, except for any such spill, discharge,
leak emission,
injection, escape, dumping or release which would not have a
Material Adverse
Effect; and (iii) the terms "hazardous wastes," "toxic wastes"
and "hazardous
substances" shall have the meanings specified in any applicable
local, state,
federal and foreign laws or regulations with respect to
environmental
protection.
ARTICLE II
SALE AND DELIVERY OF SECURITIES
2.1 Sale and Delivery of Securities.
(a) 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 issue and sell through the Sales Manager, as agent,
and the Sales
Manager agrees to sell, as agent for the Company, on a best
efforts basis, up to
the Maximum Amount of the Stock during the term of this
Agreement on the terms
set forth herein. The Stock will be sold from time to time as
described in the
Registration Statement or Prospectus, in amounts, and subject to
price
limitations, as directed by the Company and as agreed to by the
Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the
other party
hereto by telephone (confirmed promptly by telecopy), at any
time
| 
