EXHIBIT 1.1
27,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
BIOMED REALTY TRUST, INC.
(A MARYLAND CORPORATION)
FORM OF UNDERWRITING AGREEMENT
[___], 2004
Xxxxxxx Xxxxx & Associates, Inc.
As Representative of the Several Underwriters listed on Schedule I hereto
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
BioMed Realty Trust, Inc., a Maryland corporation (the "COMPANY"), and
BioMed Realty, L.P., a Maryland limited partnership (the "OPERATING PARTNERSHIP"
and together with the Company, the "TRANSACTION ENTITIES"), each confirms its
agreement with Xxxxxxx Xxxxx & Associates, Inc. ("XXXXXXX XXXXX") and each of
the other underwriters named in Schedule I hereto (the "UNDERWRITERS") for whom
Xxxxxxx Xxxxx is acting as representative (the "REPRESENTATIVE") with respect to
the issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of 27,000,000 shares (the "FIRM SECURITIES") of the
Company's common stock, par value $0.01 per share (the "COMMON STOCK"), and with
respect to the grant by the Company to the Underwriters, acting severally and
not jointly, of an option to purchase an aggregate of not more than 4,050,000
additional shares of Common Stock (the "OPTIONAL SECURITIES"), subject to the
terms and conditions set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES."
On, prior to, or shortly after the First Closing Date (as hereinafter
defined), the Company will complete a series of transactions (the "FORMATION
TRANSACTIONS") described in the Prospectus (as hereinafter defined) under the
captions "Prospectus Summary - Structure and Formation of Our Company,"
"Business and Properties - Contribution Properties," "Business and Properties -
Acquisition Properties," "Certain Relationships and Related Transactions," and
"Structure and Formation of Our Company." As part of the Formation Transactions,
(i) certain entities will contribute properties or interests therein to the
Operating Partnership or its designee, or will merge into the Operating
Partnership or its designee, in exchange for units of limited partnership of the
Operating Partnership ("OP UNITS") or cash, (ii) certain persons will contribute
their direct and indirect interests in certain entities to the Operating
Partnership or its designee in exchange for OP Units or cash, (iii) the Company
will contribute the net proceeds from the public offering of the Offered
Securities to the Operating Partnership in exchange for OP Units and (iv) the
Operating Partnership will purchase certain properties or interests therein from
third parties for cash. For purposes of this agreement, the term "CONTRIBUTION
ENTITIES" means 10255 Science Center Drive, L.P., 17190 Xxxxxxxx Center Drive,
L.P., Inhale 201
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Industrial Road, L.P., and 00000 XxXxxxxx Xxxxx, L.P., each a California limited
partnership; 0000 Xxxxxx Xxxxxx, LLC, a California limited liability company;
and Mockingbird Valley Forge, LP, a Pennsylvania limited partnership.
1. REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION ENTITIES. Each of the
Transaction Entities, jointly and severally, represents and warrants to, and
agrees with, the several Underwriters, that:
A. REGISTRATION STATEMENT.
(1) A registration statement on Form S-11 (No. 333-115204) relating
to the Offered Securities ("INITIAL REGISTRATION STATEMENT"), including a
form of prospectus, has been filed with the Securities and Exchange
Commission (the "COMMISSION") and either (i) has been declared effective
under the Securities Act of 1933, as amended (the "ACT"), and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment.
(2) If the Initial Registration Statement has been declared
effective, either (i) an additional registration statement ("ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities has been filed
with the Commission pursuant to Rule 462(b) ("RULE 462(B)") under the Act
and has become effective upon filing pursuant to such rule and the Offered
Securities all have been duly registered under the Act pursuant to the
Initial Registration Statement and the Additional Registration Statement;
(ii) such Additional Registration Statement is under consideration for
filing with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such rule, and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the Initial Registration Statement and such Additional
Registration Statement; or (iii) it is not contemplated to file an
Additional Registration Statement, and the Offered Securities all have
been duly registered under the Act pursuant to the Initial Registration
Statement.
(3) If the Company does not propose to amend the Initial
Registration Statement or if an Additional Registration Statement has been
filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the
Act or, in the case of the Additional Registration Statement, Rule 462(b).
(4) For purposes of this Agreement, the "EFFECTIVE TIME" with
respect to the Initial Registration Statement and, if filed prior to the
execution and delivery of this Agreement, the Additional Registration
Statement means:
(a) if the Company has advised the Representative that it does
not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent
post-effective amendment thereto (if
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any) filed prior to the execution and delivery of this Agreement,
was declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c); or
(b) if the Company has advised the Representative that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective
by the Commission.
(5) If an Additional Registration Statement has not been filed prior
to the execution and delivery of this Agreement but the Company has
advised the Representative that it proposes to file one, "EFFECTIVE TIME"
with respect to such Additional Registration Statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b).
(6) "EFFECTIVE DATE" with respect to the Initial Registration
Statement or the Additional Registration Statement (if any) means the date
of the Effective Time thereof.
(7) The Initial Registration Statement, as amended at its Effective
Time, including all information contained in the Additional Registration
Statement (if any) and deemed to be a part of the Initial Registration
Statement as of the Effective Time of the Additional Registration
Statement pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part of the
Initial Registration Statement as of its Effective Time pursuant to Rule
430A(b) ("RULE 430A(B)") under the Act, is hereinafter referred to as the
"INITIAL REGISTRATION STATEMENT."
(8) The Additional Registration Statement, as amended at its
Effective Time, including the contents of the Initial Registration
Statement incorporated by reference therein and including all information
(if any) deemed to be a part of the Additional Registration Statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT."
(9) The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT."
(10) The form of prospectus relating to the Offered Securities, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(B)") under the Act or (if no such filing is required) as
included in a Registration Statement, is hereinafter referred to as the
"PROSPECTUS."
(11) No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(12) For purposes of this Agreement (other than in connection with
any opinion given by counsel in Section 5 hereof, which hereby expressly
excludes any copy filed via
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Electronic Data Gathering, Analysis and Retrieval System ("XXXXX")), all
references to the REGISTRATION STATEMENT, the PROSPECTUS, any PRELIMINARY
PROSPECTUS, or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to XXXXX.
B. CONFORM TO ACT; NO MISLEADING STATEMENTS; CONFORMITY WITH XXXXX
FILINGS.
(1) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement:
(a) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(b) on the Effective Date of the Additional Registration
Statement (if any) each Registration Statement conformed, or will
conform, in all material respects to the requirements of the Act and
the Rules and Regulations and did not include, or will not include,
any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and
(c) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conform, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each of
the Registration Statement or Registration Statements and the
Prospectus conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and none of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein (with respect to the Prospectus only, in light of the
circumstances under which they were made) not misleading.
(2) If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, then on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein (with respect to the Prospectus only in
light of the circumstances under
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which they were made) not misleading, and no Additional Registration
Statement has been or will be filed.
(3) The two preceding subsections do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representative specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
6.B hereof.
(4) Each Prospectus and preliminary Prospectus delivered to the
Underwriters and used in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
C. NO STOP ORDER. No stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of either of the
Transaction Entities, threatened by the Commission or by the state securities
authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued, and no proceeding for that purpose has been
instituted or, to the knowledge of either of the Transaction Entities,
threatened by the Commission or by the state securities authority of any
jurisdiction.
D. COMPANY FORMATION; GOOD STANDING; QUALIFICATION. The Company has been
duly formed and is validly existing as a corporation in good standing under the
laws of the State of Maryland, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and as general
partner of the Operating Partnership to cause the Operating Partnership to enter
into and perform the Operating Partnership's obligations under this Agreement,
and under each of the Operating Partnership Agreement (as hereinafter defined),
the Contribution Agreements (as hereinafter defined), the Employment Agreements
(as hereinafter defined), the Management Agreements (as hereinafter defined),
and the purchase agreements described in the Prospectus under the heading
"Business and Properties - Acquisition Properties" (excepting with respect to
the agreement described under the heading "Business and Properties - Acquisition
Properties - Eisenhower Road," which for purposes herein is deemed a
Contribution Agreement) (together, the "FORMATION TRANSACTION AGREEMENTS"); and
the Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except where the
failure to so qualify would not reasonably be expected to have, individually or
in the aggregate, a material adverse effect on the condition (financial or
other), business, earnings, properties, assets, results of operations or
prospects of the Transaction Entities and their subsidiaries taken as a whole,
whether or not in the ordinary course ("MATERIAL ADVERSE EFFECT").
E. OPERATING PARTNERSHIP FORMATION; GOOD STANDING; QUALIFICATION;
INTERESTS IN OPERATING PARTNERSHIP. The Operating Partnership has been duly
formed and is validly existing as a limited partnership in good standing under
the laws of the State of Maryland, is duly qualified to do business and is in
good standing as a foreign limited partnership in each
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jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not reasonably be expected to have a Material Adverse Effect, and has all
power and authority necessary to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations under
this Agreement and the Formation Transaction Agreements to which it is a party.
The Company is the sole general partner of the Operating Partnership. At the
First Closing Date, the Amended and Restated Agreement of Limited Partnership of
the Operating Partnership, as amended (the "OPERATING PARTNERSHIP AGREEMENT"),
and the aggregate percentage interests of the Company and the limited partners
in the Operating Partnership will be as set forth in the Prospectus; provided,
that to the extent any portion of the over-allotment option described in Section
2 hereof is exercised at the First Closing Date, the percentage interest of the
Company and of such limited partners in the Operating Partnership will be
adjusted accordingly. Additionally, to the extent any portion of such
over-allotment option is exercised subsequent to the First Closing Date, the
Company will contribute the proceeds from the sale of the Optional Securities to
the Operating Partnership in exchange for a number of OP Units equal to the
number of Optional Securities issued.
F. SUBSIDIARY AND CONTRIBUTION ENTITIES FORMATION; GOOD STANDING;
QUALIFICATION; LIENS; PRE-EMPTIVE RIGHTS. BioMed Realty, LLC ("BMRLLC"), each
direct or indirect subsidiary listed on Schedule A hereto (each, a "SUBSIDIARY"
and together the "SUBSIDIARIES"), and each of the Contribution Entities has been
duly formed and is validly existing as a corporation, limited partnership or
limited liability company, as the case may be, in good standing under the laws
of the jurisdiction of its organization, with power and authority (corporate and
other) to own its assets and conduct its business as described in the Prospectus
and to enter into and to perform its obligations under this Agreement and the
Formation Transaction Agreements to which it is a party; and is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not reasonably be expected to have a Material Adverse Effect; all of its
issued and outstanding capital stock or other ownership interests have been duly
authorized and validly issued and are fully paid and non-assessable; and except
as described in the Prospectus, at the First Closing Date its capital stock or
other ownership interests will be owned by the Company, directly or through
subsidiaries, free and clear of any security interests, liens, mortgages,
encumbrances, pledges, claims, defects or other restrictions of any kind
(collectively, "LIENS"), except where such Liens would not reasonably be
expected to have a Material Adverse Effect. None of such equity interests were
issued in violation of the preemptive or other similar rights of any
securityholder of each Subsidiary. There are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or subscribe for equity
interests or other securities of any Subsidiary.
G. CAPITAL OF THE COMPANY; OPTIONS; NO PREEMPTIVE RIGHTS. The authorized
capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus under the caption "Description
of Securities" and the issued and outstanding capital stock of the Company, as
of the First Closing Date, will be, in all material respects, as set forth in
the Prospectus under the caption "Capitalization." None of the outstanding
shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company. Except as
disclosed in the Prospectus:
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(i) except for shares of common stock reserved for issuance upon exchange or
redemption of the OP Units, in connection with the Company's equity incentive
plan described in the Prospectus (the "EQUITY INCENTIVE PLAN") or pursuant to
the exercise of the warrant to be granted to Xxxxxxx Xxxxx & Associates, Inc.,
no shares of Common Stock are to be reserved for any purpose; (ii) except for
the OP Units and options to purchase common stock under the Equity Incentive
Plan, there are no outstanding securities convertible into or exchangeable for
any shares of Common Stock; and (iii) except for options to purchase common
stock under the Equity Incentive Plan and the warrant to be granted to Xxxxxxx
Xxxxx & Associates, Inc., there are no outstanding options, rights (preemptive
or otherwise) or warrants to purchase or subscribe for shares of Common Stock or
any other securities of the Company.
H. AUTHORIZATION OF ISSUANCE OF SHARES; CONFORMITY WITH APPLICABLE LAWS.
The Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital stock of
the Company are, and, when the Offered Securities have been delivered and paid
for in accordance with this Agreement on each Closing Date, such Offered
Securities will have been, validly issued, fully paid and non-assessable, have
been, or will be, offered and sold in compliance with all applicable federal and
state securities laws and will conform, in all material respects, to the
description thereof contained in the Prospectus. Upon payment of the purchase
price and delivery of the Offered Securities in accordance herewith, the
Underwriters will receive good, valid and marketable title to the Offered
Securities, free and clear of all Liens. The form of the certificates to be used
to evidence the Offered Securities will, at the First Closing Date, be in due
and proper form and will comply with all applicable legal requirements, the
requirements of the charter and bylaws of the Company and the requirements of
the New York Stock Exchange, Inc. (the "NYSE").
I. AUTHORIZATION OF ISSUANCE OF OP UNITS; CONFORMITY WITH APPLICABLE LAWS;
NO PREEMPTIVE RIGHTS. The OP Units issued or to be issued in connection with the
Formation Transactions, including, without limitation, the OP Units to be issued
to the Company, have been duly authorized for issuance by the Operating
Partnership to the holders or prospective holders thereof, and at the First
Closing Date will be validly issued and fully paid. The OP Units will be exempt
from registration or qualification under the Act and applicable state securities
laws. None of OP Units will be issued in violation of the preemptive or other
similar rights of any securityholder of the Operating Partnership. Except for OP
Units to be issued in the Formation Transactions, there are no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or subscribe
for OP Units or other securities of the Operating Partnership.
J. NO OTHER BROKERAGE FEES. Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the Transaction Entities,
any Subsidiary, or any of the Contribution Entities and any person that would
give rise to a valid claim against the Transaction Entities, any Subsidiary, any
Contribution Entity or any Underwriter for a brokerage commission, finder's fee
or other like payment in connection with this offering or the Formation
Transactions, except commissions payable to real estate brokers in connection
with the acquisition of certain properties described in the Prospectus under the
caption "Business and Properties - Acquisition Properties."
K. NO REGISTRATION RIGHTS. Except for the Registration Rights Agreements
to be entered into on the Closing Date between the Company and certain
contributors in the Formation
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Transactions (the "REGISTRATION RIGHTS AGREEMENTS"), there are no contracts,
agreements or understandings between the Transaction Entities and any person
granting such person the right to require the Transaction Entities to file a
registration statement under the Act with respect to any securities of the
Transaction Entities owned or to be owned by such person or to require the
Transaction Entities to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Transaction Entities
under the Act.
L. EXEMPT PRIOR ISSUANCES. The issuance and sale by the Company of shares
of Common Stock (other than the Offered Securities) and options to purchase
Common Stock at or prior to the First Closing Date are exempt from the
registration requirements of the Act and applicable state securities laws.
M. NO VIOLATIONS OR DEFAULTS. None of the Transaction Entities, the
Contribution Entities, nor the Subsidiaries, (i) is in violation of its charter
or by-laws or other similar organization documents, (ii) is in default (whether
with or without the giving of notice or passage of time or both) in the
performance or observance of any obligation, agreement, term, covenant or
condition contained in a contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease (under which such Transaction Entity or a
Subsidiary is landlord or otherwise), ground lease or air space lease (under
which such Transaction Entity or a Subsidiary is tenant), development agreement,
reciprocal easement agreement, deed restriction, hotel management agreement,
parking management agreements, or other agreement or instrument to which it is a
party or by which it or any of them is a party or may be bound, or to which any
of the Properties (as hereinafter defined) or any of its property or assets of
such Transaction Entity or Subsidiary is subject (collectively, "AGREEMENTS OR
INSTRUMENTS"), or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or the Properties or any of its
other properties or assets may be subject, except for such defaults or
violations that would not have a Material Adverse Effect.
N. NO CONSENTS REQUIRED. No consent, approval, authorization, or order of,
or filing or registration with, any governmental agency or body or any court or
any third party is required for the consummation of the transactions
contemplated by this Agreement or the Formation Transaction Agreements, except
as have been obtained or made under the Act and as may be required under state
securities laws, or such consents, approvals, authorizations, orders, filings or
registrations that will be obtained or completed by the First Closing Date, or
that the absence of which, individually or in the aggregate would not reasonably
be expected to have a Material Adverse Effect.
O. NON-CONTRAVENTION. Except as disclosed in the Prospectus, the
execution, delivery and performance of this Agreement by the Transaction
Entities and the consummation of the transactions contemplated hereby, including
the Formation Transactions, do not and will not (whether with or without the
giving of notice or passage of time or both) conflict with or result in a breach
or violation of any of the terms and provisions of, or constitute a default (or
give rise to any right of termination, acceleration, cancellation, repurchase or
redemption) or Repayment Event (as hereinafter defined) under, or result in the
creation or imposition of a Lien upon any property or assets of the Transaction
Entities or any Subsidiary pursuant to, (i) any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic
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or foreign, having jurisdiction over the Transaction Entities or any of their
subsidiaries or any of their properties, assets or business to be owned by them
following completion of the Formation Transactions; (ii) any term, condition or
provision of any Agreements or Instruments; or (iii) the charters, by-laws or
other organizational documents, as applicable, of the Transaction Entities or
any of the Subsidiaries (except for such conflicts, breaches, violations or
defaults that (with response to subclauses (i) and (ii) above) (1) would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or (2) relate to mortgage indebtedness to be repaid in full or
equity interests to be purchased in full, with a portion of the net proceeds
from the sale of the Offered Securities or in connection with the Formation
Transactions, as reflected in the "Use of Proceeds" section of the Prospectus.
As used herein, "REPAYMENT EVENT" means any event or condition which, without
regard to compliance with any notice or other procedural requirements, gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or any
Subsidiary.
P. VALIDITY AND SUFFICIENCY OF AGREEMENTS. Each of this Agreement, the
Management Agreements, the Lock-Up Agreements (as defined below) and the
Formation Transaction Agreements has been duly and validly authorized, executed
and delivered by each of the Transaction Entities party thereto (and, to the
knowledge of the Transaction Entities, by each other party thereto with respect
to the Employment Agreements and Lock-Up Agreements), and each of the Management
Agreements, Contribution Agreements and the Operating Partnership Agreement is a
valid and binding agreement of each of the Transaction Entities that are parties
thereto, enforceable against such Transaction Entity (and, to the knowledge of
the Transaction Entities, against each other party thereto with respect to the
Employment Agreements and Lock-Up Agreements) in accordance with its terms,
except (i) to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights; (ii) as limited by the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law (including the
possible unavailability of specific performance or injunctive relief), concepts
of materiality, reasonableness, good faith and fair dealing, and the discretion
of the court before which any proceeding therefore may be brought; (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy; and (iv) the unenforceability of any provision requiring the
payment of attorney's fees, except to the extent that a court determines such
fees to be reasonable. The Formation Transaction Agreements are sufficient to
effect the transfer to the Company or Operating Partnership of all direct or
indirect interests in the Properties and other assets specified and as described
in the Prospectus upon payment of the consideration therefor. For purposes of
this Agreement
(1) "CONTRIBUTION AGREEMENTS" shall mean the contribution, option,
purchase and other agreements by and among the Operating Partnership and
the various contributing or selling individuals and entities named therein
providing for the contribution or sale of the Properties described in the
Prospectus under the captions "Business and Properties - Contribution
Properties" and "Business and Properties -
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Acquisition Properties - Eisenhower Road" or interests therein and certain
other related assets to the Operating Partnership or its subsidiaries;
(2) "MANAGEMENT AGREEMENTS" shall mean the management and related
agreements listed on Schedule B by and between the Subsidiaries listed on
such Schedule and BMRLLC and between BMRLLC and the Operating Partnership,
as applicable;
(3) "EMPLOYMENT AGREEMENTS" shall mean the employment agreements
between the Operating Partnership and/or the Company and each of Xxxx X.
Gold, Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, XX, and Xxxxxxx X. XxXxxxxx
(collectively, the "KEY OFFICERS"); and
(4) "LOCK UP AGREEMENTS" shall mean at the First Closing Date, the
lock up agreements by each of the Key Officers and each person or entity
holding or that will hold following consummation of the Formation
Transactions one percent or more of the Common Stock (assuming all OP
Units not held by the Company are converted to Common Stock of the
Company) of the Company (excepting stockholders not affiliated with the
Company who purchase Offered Securities).
Q. LICENSES. The Transaction Entities, the Contribution Entities, and the
Subsidiaries possess adequate certificates, authorities, licenses, consents,
approvals, permits and other authorizations ("LICENSES") issued by appropriate
governmental agencies or bodies or third parties necessary to conduct the
business now operated by them, have maintained such Licenses in full force and
effect, and have not received any notice of proceedings relating to the
revocation or modification of any such Licenses that, if determined adversely to
the Transaction Entities or any of the Subsidiaries, would individually or in
the aggregate would reasonably be expected to have a Material Adverse Effect.
The Transaction Entities and the Subsidiaries are in material compliance with
the terms and conditions of all such Licenses except as would not reasonably be
expected to have a Material Adverse Effect.
R. FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly (1) the financial position of the Company and its
consolidated subsidiaries (and the combined financial position of any
predecessor entities) at the dates indicated; (2) the results of operations,
owners' equity and cash flows of the Company and its consolidated Subsidiaries
(and the combined results of operations, owners' equity, and cash flows of any
predecessor entities) for the periods specified; and (3) the revenues and
certain expenses of certain of the acquisition properties for the periods
specified; said financial statements have been prepared in conformity with
accounting principles generally accepted in the United States of America
("GAAP") applied on a consistent basis throughout the periods involved; said
financial statements have been prepared on a consistent basis with the books and
records of the Company and its consolidated subsidiaries (and any predecessor
entities) in the case of the statements of financial position of the Company and
its consolidated subsidiaries (and the combined financial position of any
predecessor entities) and the results of operations, owners' equity and cash
flows of the Company and its consolidated Subsidiaries (and the combined results
of operations, owners' equity, and cash flows of any predecessor entities). The
supporting schedules included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein.
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The unaudited pro forma condensed consolidated financial statements and the
related notes thereto included in the Registration Statement and the Prospectus
have been prepared in accordance with the applicable requirements of Rules 11-01
and 11-02 of Regulation S-X under the Act, and, in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable and provide a
reasonable basis for presenting the significant effects directly attributable to
the transactions or events described therein, and the related adjustments used
therein give appropriate effect to the transactions and circumstances referred
to therein and the pro forma columns therein reflect the proper application of
these adjustments to the corresponding historical financial statement amounts.
Other than the historical financial statements, financial statements prepared in
accordance with Rule 3-14 of Regulation S-X under the Act, pro forma financial
statements ("PRO FORMA FINANCIAL STATEMENTS"), and schedules relating thereto
included in the Registration Statement and Prospectus, no other historical or
pro forma financial statements (or schedules) are required by the Act or the
Rules and Regulations to be included therein.
S. INDEPENDENT PUBLIC ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and delivered the initial letter referred to in Section 5.A hereof,
are independent public accountants as required by the Act and the Rules and
Regulations.
T. REIT STATUS. Commencing with the taxable year ending December 31, 2004,
the Company will be organized and operated in conformity with the requirements
for qualification and taxation as a real estate investment trust (a "REIT")
under the Internal Revenue Code 1986, as amended (the "CODE"), and its proposed
method of operation will enable it to meet the requirements for qualification
and taxation as a REIT under the Code.
U. TAX RETURNS AND MATTERS. The Transaction Entities, the Contribution
Entities, and each of the Subsidiaries (including any predecessor entities) have
filed all foreign, federal, state and local tax returns that are required to be
filed or have requested extensions thereof (except in any case in which the
failure so to file would not, upon consummation of the Formation Transactions,
reasonably be expected to have a Material Adverse Effect) and have paid all
taxes required to be paid by them and any other assessment, fine or penalty
levied against them, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that (i) is currently being
contested in good faith, (ii) would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect or (iii) as described
in or contemplated by the Prospectus.
V. TAX MATTERS. Except as disclosed in the Prospectus, there is no pending
or, to the knowledge of the Transaction Entities, threatened special assessment,
tax reduction proceeding or other action which could increase or decrease the
real property taxes or assessments of any Property, which, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.
W. NO OTHER OFFERING DOCUMENTS OR PROSPECTUSES. The Transaction Entities,
the Contribution Entities, and each of their subsidiaries have not distributed,
and prior to the later of the First Closing Date and the completion of the
distribution of the Offered Securities, will not distribute, any offering
material in connection with the offering or sale of the Offered Securities
11
other than the Registration Statement, the Prospectus or any other materials, if
any, permitted by the Act (which were disclosed to the Representative and its
counsel).
X. ERISA MATTERS.
(1) Each Transaction Entity is in compliance, in all material
respects, with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA other than an event for which the
notice requirements have been waived by regulations) has occurred with
respect to any "pension plan" (as defined in ERISA) for which any
Transaction Entity would have any liability; no Transaction Entity has
incurred or expects to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Code including the regulations and published
interpretations thereunder; and each "pension plan" for which any
Transaction Entity would have any liability that is intended to be
qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service that such plan is
so qualified in all material respects and, except to the knowledge of the
Transaction Entities, nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification, except
where such non-compliance, reportable events, liabilities or failure to be
so qualified would not reasonably be expected to have a Material Adverse
Effect.
(2) The assets of the Transactions Entities and their subsidiaries
do not constitute "plan assets" of an ERISA regulated employee benefit
plan.
(3) At the First Closing Date, the Company will be a "real estate
operating company" as such term is defined in paragraph (e) of the plan
assets regulation in 29 C.F.R. Section 2510.3-101, or will be an
"operating company" as defined in the first sentence of paragraph (c)
thereof.
Y. PROPERTY MATTERS. Upon consummation of the Formation Transactions:
(1) the Transaction Entities or their Subsidiaries will have fee
simple title (or in the case of the Landmark at Eastview property, located
in Tarrytown, New York, a leasehold interest) to all of the properties
described in the Prospectus as owned or to be owned or leased by them (the
"PROPERTIES"), in each case, free and clear of all Liens except such as
(i) are set forth in the Title Reports listed on Schedule C hereto (the
"TITLE REPORTS"); (ii) are disclosed in the Prospectus; and (iii) would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(2) except as disclosed in the Prospectus, none of the Transaction
Entities, nor any Subsidiary, knows of any violation of any municipal,
state or federal law, rule or regulation (including those pertaining to
environmental matters) concerning the Properties or any part thereof which
could have a Material Adverse Effect;
(3) each of the Properties complies with all applicable zoning laws,
ordinances, regulations, and deed restrictions or other covenants in all
material respects
12
and, if and to the extent there is a failure to comply, such failure would
not reasonably be expected to result in a Material Adverse Effect;
(4) none of the Transaction Entities, nor any Subsidiary or
Contribution Entity, has received from any governmental authority any
written notice of any condemnation of or zoning change affecting the
Properties or any part thereof, and none of the Transaction Entities nor
any Subsidiary or predecessor entity knows of any such condemnation or
zoning change that is threatened against any of the Properties and that,
if consummated, would reasonably be expected to have a Material Adverse
Effect;
(5) true, correct and complete copies of the leases, exhibits,
schedules or other documents that comprise the leases described in the
"Business and Properties" section of the Prospectus where (1) the tenant
has been specifically identified or (2) information relating to a lease
has been summarized even if such tenant has not been specifically
identified (the "MAJOR LEASES") have been provided to the Underwriters or
their counsel;
(6) there are no other material agreements between any Transaction
Entity, any Subsidiary, or any entity owning such Property immediately
prior to the Formation Transactions on the one hand and a tenant under a
Major Lease relating to any of the Properties;
(7) except as described in the Prospectus, reflected in the Pro
Forma Financial Statements, as disclosed in any tenant estoppel
certificates that are listed on Schedule D hereto, or as would not
reasonably be expected to result in a Material Adverse Effect:
(a) none of the Major Leases has been assigned;
(b) no brokerage fees, commissions or any similar payments are
owed or payable by the lessor under any of the Major Leases to any
third party in connection with the existence or execution thereof,
or in connection with any renewal, expansion or extension of any
Major Leases which has occurred prior to, or may occur after, a
Closing Date, except additional fees payable to brokers in
connection with the extension of certain leases described in the
Prospectus under the caption "Business and Properties - Acquisition
Properties;"
(c) all of the Major Leases, and, all guaranties related
thereto, if any, are in full force and effect;
(d) no rentals or other amounts due under the Major Leases
have been paid more than one (1) month in advance;
(e) no tenant has asserted in writing any defense or set-off
against the payment of rent in connection with the Major Leases nor
has any tenant contested any tax, operating cost or other escalation
payment or occupancy charge, or any other amounts payable under its
Major Leases;
(f) all tenants, licensees, franchisees or other parties under
the Major Leases are in possession of their respective premises;
13
(g) except for the mortgage loans encumbering the Properties
and described in the Prospectus, none of the Major Leases has been
assigned, mortgaged, pledged, sublet, hypothecated or otherwise
encumbered;
(h) no material provision under any Major Lease has been
waived;
(i) there are no uncured events of default, or events that
with the giving of notice or passage of time, or both, would
constitute an event of default, by any tenant under any of the terms
and provisions of the Major Leases;
(j) no tenant under any of the leases at the Properties has a
right of first refusal to purchase the premises demised under such
lease.
(8) Water, stormwater, sanitary sewer, electricity and telephone
service are all available at the property lines of each Property over duly
dedicated streets or perpetual easements of record benefiting the
applicable Property, except as would not reasonably be expected to result
in a Material Adverse Effect.
Z. NO PARTICIPATING INTERESTS. The mortgages and deeds of trust
encumbering the Properties and assets described in the Prospectus are not
convertible, and neither the Transaction Entities, any of their Subsidiaries,
nor any person affiliated therewith holds a participating interest therein, and
such mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property not owned directly or indirectly by the
Transaction Entities or any of their subsidiaries.
AA. INSURANCE. Except as described or referred to in the Prospectus, at
the First Closing Date or, if later, the completion of any element of the
Formation Transactions, the Operating Partnership and any Subsidiary that, upon
completion of the Formation Transactions, owns, or leases under ground leases,
real property will have obtained title insurance on the fee interests (or
leasehold interests) in each of the Properties and other insurance covering such
risks and in amounts that are commercially reasonable for the assets owned by
them, and in each case such title insurance and other insurance is (or will be)
in full force and effect. Neither the Transaction Entities nor any of the
Subsidiaries has any reason to believe that any of them will not be able to
obtain or renew its existing insurance coverage as and when required by the
preceding or as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business.
BB. ENVIRONMENTAL MATTERS. Except as otherwise disclosed in the Prospectus
or in the Phase I Environmental Audits previously delivered to the Underwriters
or their counsel (the "ENVIRONMENTAL AUDITS"),
(1) none of the Transaction Entities, any of the Subsidiaries nor,
to the best knowledge of the Transaction Entities, any other owners of
each Property at any time or any other party has at any time handled,
stored, treated, transported, manufactured, transferred or otherwise dealt
with, Hazardous Materials (as hereinafter defined) on, to or from the
Properties, other than by any such action taken in compliance with all
applicable Environmental Laws;
14
(2) none of the Transaction Entities, any of the Subsidiaries nor,
to the best knowledge of the Transaction Entities, any other owners of
each Property at any time or any other party has at any time spilled,
leaked, discharged, dumped, released, or otherwise disposed of Hazardous
Materials (as hereinafter defined) on, to or from the Properties, except
where such events would not reasonably be expected to result in a Material
Adverse Effect;
(3) the Transaction Entities do not intend to use the Properties or
any subsequently acquired properties, or to lease the Properties or any
subsequently acquired properties to any party that will use such
Properties or any subsequently acquired properties, for the purpose of
handling, storing, treating, transporting, manufacturing, transferring or
otherwise dealing with Hazardous Materials other than by any such action
taken in compliance with all applicable Environmental Laws;
(4) the Transaction Entities do not intend to use the Properties or
any subsequently acquired properties, or to lease the Properties or any
subsequently acquired properties to any party that will use such
Properties or any subsequently acquired properties, for the purpose of
spilling, leaking, releasing, discharging, dumping, or otherwise disposing
of Hazardous Materials on or from such Properties;
(5) none of the Transaction Entities nor any of the Subsidiaries
knows of any seepage, leak, discharge, release, emission, spill, or
dumping of Hazardous Materials into soil or waters (including, but not
limited to, groundwater and surface water) on or adjacent to the
Properties or any other real property owned or occupied by any such party,
or onto lands from which Hazardous Materials might seep, flow or drain
into such waters, except where such events would not reasonably be
expected to result in a Material Adverse Effect;
(6) none of the Transaction Entities nor any of the Subsidiaries has
received any notice of or is aware of any receipt by any other party of a
notice of, or has any knowledge of any occurrence or circumstance that
would give rise to a claim under or pursuant to any Environmental Law,
pertaining to Hazardous Materials on or originating from any of the
Properties or any assets described in the Prospectus (or, the most recent
preliminary Prospectus) or any other real property owned or occupied by
any such party or arising out of the conduct of any such party, including
without limitation a claim under or pursuant to any Environmental Law (as
hereinafter defined);
(7) none of the Transaction Entities nor any of the Subsidiaries has
(A) been notified that it is potentially liable under or (B) received any
requests for information or other correspondence concerning any site or
facility under, nor has, to the best knowledge of the Transaction
Entities, any seller of the Acquisition Properties, received any notice
that it is considered potentially liable under CERCLA or any similar law;
(8) none of the Properties are included or, to the best of the
Transaction Entities' knowledge, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as hereinafter defined) by the
United States Environmental Protection Agency (the "EPA") or, to the best
of the Transaction Entities' knowledge,
15
proposed for inclusion on any similar list or inventory issued pursuant to
any other Environmental Law or issued by any other Governmental Authority
(as hereinafter defined);
(9) the Transaction Entities do not intend to use the Properties or
other assets owned by the Transaction Entities or their Subsidiaries other
than in compliance with applicable Environmental Laws;
(10) to the knowledge of the Transaction Entities, the Properties
contain no above-ground and underground storage tanks, oil/water
separators, sumps, or septic systems; and
(11) (a) to the knowledge of the Transaction Entities, no building
or other improvement located on the Properties contains any asbestos or
asbestos-containing materials; (b) to the knowledge of the Transaction
Entities, all asbestos or asbestos-containing materials are managed,
handled, treated, and removed in compliance with Environmental Law; and
(c) the Transaction Entities do not intend to manage, handle, treat, or
remove asbestos other than in compliance with Environmental Law.
As used herein, "HAZARDOUS MATERIAL" means any chemical, substance, waste,
material, pollutant, contaminant, equipment or fixture defined as or deemed
hazardous or toxic or otherwise regulated under any Environmental Law,
including, without limitation, RCRA hazardous wastes, CERCLA hazardous
substances, pesticides and other agricultural chemicals, oil and petroleum
products or byproducts and any constituents thereof, urea formaldehyde
insulation, lead in paint or drinking water, asbestos, and polychlorinated
biphenyls (PCBs).
As used herein, "ENVIRONMENTAL LAWS" means all codes, laws (including, without
limitation, common law), ordinances, regulations, reporting or licensing
requirements, rules, or statutes in effect as of the Effective Date relating to
pollution or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata),
including, without limitation (i) the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C.Sections9601 et seq. ("CERCLA");
(ii) the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C.Sections6901 et seq., ("RCRA"); (iii) the Emergency
Planning and Community Right to Know Act (42 U.S.C. Sections11001 et
seq.); (iv) the Clean Air Act (42 U.S.C.Sections7401 et seq.); (v) the
Clean Water Act (33 U.S.C. Sections1251 et seq.); (vi) the Toxic
Substances Control Act (15 U.S.C.Sections2601 et seq.); (vii) the
Hazardous Materials Transportation Act (49 U.S.C.Sections5101 et seq.);
(viii) the Safe Drinking Water Act (41 U.S.C.Sections300f et seq.); (ix)
any state, county, municipal or local statues, laws or ordinances similar or
analogous to the federal statutes listed in parts (i) - (viii) of this
subparagraph, (x) any amendments to the statutes, laws or ordinances listed in
parts (i) - (ix) of this subparagraph, (xi) any rules, regulations, enforceable
guidelines or directives, orders or the like adopted pursuant to or implementing
the statutes, laws, ordinances and amendments listed in parts (i) - (xi) of this
subparagraph; and (xii) any other law, statute, ordinance, amendment, rule,
regulation, guideline, directive, order or the like relating to environmental,
health or safety matters.
16
As used herein, a "GOVERNMENTAL AUTHORITY" means any federal, state, or local
governmental authority having or claiming jurisdiction over the properties and
assets described in the Prospectus.
CC. INDEPENDENCE OF ENVIRONMENTAL CONSULTANTS. None of the environmental
consultants that prepared the Environmental Audits with respect to any of the
Properties was employed for such purpose on a contingent basis or has any
substantial interest (contingent or otherwise) in the Transaction Entities or
any of their Subsidiaries (including any predecessor entity), and none of them
nor any of their directors, officers or employees is connected with the
Transaction Entities or any of their Subsidiaries (or any of their predecessor
entities) as a promoter, selling agent, voting trustee, director, officer or
employee.
DD. NYSE LISTING APPROVAL. The Offered Securities have been approved for
listing on the NYSE subject to official notice of issuance.
EE. LABOR RELATIONS. With respect to employees of the Transaction Entities
or any Subsidiary, including persons who will become employees as a result of
the Formation Transactions, no labor dispute exists or, to the knowledge of the
Transaction Entities, is imminent that might reasonably be expected to have a
Material Adverse Effect.
FF. INTELLECTUAL PROPERTY RIGHTS. The Transaction Entities and their
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business
now operated or presently intended to be operated by them, or presently employed
by them, and have not received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property Rights that,
if determined adversely to the Transaction Entities or any of their
subsidiaries, would reasonably be expected to have a Material Adverse Effect.
GG. NO PROCEEDINGS. Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Transaction
Entities, any of the Subsidiaries or any of the Properties or other assets that,
if determined adversely to the Transaction Entities or any of the Subsidiaries,
would reasonably be expected to have a Material Adverse Effect, or would
materially and adversely affect the ability of the Transaction Entities to
perform their obligations under this Agreement, the Formation Transaction
Agreements or the transactions contemplated therein; and no such actions, suits
or proceedings are threatened or, to the Transaction Entities' knowledge,
contemplated.
HH. NO MATERIAL ADVERSE CHANGE; NO MATERIAL TRANSACTIONS. Except as
disclosed in the Prospectus, since the date of the latest audited financial
statements included in the Prospectus (1) there has been no material adverse
change, nor any development or event involving a prospective material adverse
change, individually or in the aggregate, in the condition (financial or other),
business, properties, earnings, results of operations or prospects of the
Company and its Subsidiaries taken as a whole whether or not in the ordinary
course; or (2) there have been no transactions entered into by the Company nor
any of its Subsidiaries which are material with respect to the Company and its
Subsidiaries considered as one entity.
17
II. INVESTMENT COMPANY ACT STATUS. No Transaction Entity is and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Prospectus, no
Transaction Entity will be, an "investment company" as defined in the Investment
Company Act of 1940, as amended.
JJ. ADEQUATE DISCLOSURE OF CONTRACTS AND DOCUMENTS. There are no contracts
or documents which are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
KK. RELATED PARTY DISCLOSURES. No relationship, direct or indirect, exists
between or among any of the Transaction Entities on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Transaction
Entities on the other hand, which is required to be described in the Prospectus
and which is not so described.
LL. BOOKS, RECORDS, AND INTERNAL CONTROLS. Each Transaction Entity (i)
makes and keeps books and records that are accurate in all material respects and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
MM. STABILIZATION ACTIVITIES. None of the Transaction Entities nor any of
their respective officers, directors, members or controlling persons has taken,
or will take, directly or indirectly, any action designed to or that might
reasonably be expected to result in a violation of Regulation M under the
Exchange Act or cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Offered Securities.
NN. USE OF PROCEEDS. The Company intends to apply the net proceeds from
the sale of the Offered Securities being sold by the Company in accordance with
the description set forth in the Prospectus under the heading "Use of Proceeds."
OO. SUBSIDIARY TAX CLASSIFICATION. Each of the Operating Partnership and
any other Subsidiary that is a partnership or a limited liability company has
been properly classified either as a partnership or as an entity disregarded as
separate from the Company for Federal income tax purposes throughout the period
from its formation through the date hereof.
PP. ADEQUATE DISCLOSURE OF ACQUISITIONS AND DISPOSITIONS. There are no
contracts, letters of intent, term sheets, agreements, arrangements or
understandings with respect to the direct or indirect acquisition or disposition
by the Company of interests in assets or real property that is required to be
described in the Prospectus that is not already so described.
2. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $[_______] per share, the respective
numbers of shares of Firm Securities set forth opposite the names of the
Underwriters on Schedule I hereto.
18
The Company will deliver the Firm Securities to the Representative for the
accounts of the Underwriters, against payment of the purchase price in Federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to the Representative drawn to the order of BioMed Realty
Trust, Inc. at the office of Xxxxxx & Xxxxxxx LLP, 00000 Xxxx Xxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX 00000, at 12:00 p.m., New York time, on [____], 2004, or at
such other time not later than seven full business days thereafter as the
Representative and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representative requests and
will be made available for checking and packaging at the office of Xxxxxx & Bird
LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000 at least 48 hours prior
to the First Closing Date.
In addition, upon written notice from the Representative given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per share to be paid for the Firm Securities.
The Company agrees to sell to the Underwriters the number of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
the Representative to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Representative to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representative but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representative for the accounts of the several Underwriters, against payment
of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the
Representative drawn to the order of BioMed Realty Trust, Inc., at the office of
Xxxxxx & Xxxxxxx LLP. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as the Representative requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the office of Xxxxxx & Bird LLP at a reasonable
time in advance of such Optional Closing Date.
19
3. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
A. ADDITIONAL FILINGS WITH THE COMMISSION. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement, the Company will file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement.
The Company will advise the Representative promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
Additional Registration Statement is necessary to register a portion of the
Offered Securities under the Act, but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the Additional
Registration Statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b) on or
prior to 10:00 p.m., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and distributed to
any Underwriter, or will make such filing at such later date as shall have been
consented to by the Representative.
B. REQUIRED NOTICES TO AND CONSENT OF REPRESENTATIVE RELATING TO
AMENDMENTS OR SUPPLEMENTS. The Company will advise the Representative promptly
of any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any), the
Prospectus or any preliminary Prospectus and will not effect such amendment or
supplementation without the Representative's consent; and the Company will also
advise the Representative promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and delivery of
this Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of any stop
order proceedings in respect of a Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
C. SUBSEQUENT EVENTS REQUIRING AMENDMENT OR SUPPLEMENT. If, at any time
when a Prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly notify
the Representative of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such compliance.
Neither the Representative's consent to, nor the
20
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
D. 12-MONTH EARNINGS STATEMENT. As soon as practicable, but not later than
the Availability Date (as hereinafter defined), the Company will make generally
available to its securityholders an earnings statement covering a period of at
least 12 months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, "AVAILABILITY DATE" means the 45th day
after the end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal quarter is the
last quarter of the Company's fiscal year, "AVAILABILITY DATE" means the 90th
day after the end of such fourth fiscal quarter.
E. COPIES OF DOCUMENTS. The Company will furnish to the Representative
copies of each Registration Statement (one of which will be signed and will
include all exhibits), each related preliminary Prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered under
the Act in connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case in such
quantities as the Representative requests. The Prospectus shall be so furnished
on or prior to 3:00 p.m., New York time, on the business day following the later
of the execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents. The aforementioned
documents furnished to the Underwriters or to any dealer shall be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
F. ANNUAL REPORTS. During the period of five years hereafter, the Company
will furnish to the Representative and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year and as soon as available, a
copy of each definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders; and the Company will furnish
to the Representative (i) to the extent not available through XXXXX or any
system succeeding or replacing XXXXX, as soon as available, a copy of each
report of the Company filed with the Commission under the Exchange Act or mailed
to stockholders, and (ii) from time to time, such other information concerning
the Company as the Representative may reasonably request.
G. BLUE SKY QUALIFICATION. The Company will arrange for the qualification
of the Offered Securities for sale under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in effect so
long as required for the distribution.
H. LIMITS ON FUTURE REGISTRATION STATEMENTS. For a period of one year
after the date of the initial public offering of the Offered Securities, the
Company will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration statement
(except a registration statement on Form S-8 relating to the 2004 Incentive
Award Plan of BioMed Realty Trust, Inc. and BioMed Realty, L.P. or on Form S-
21
4 relating to an acquisition of another entity) under the Act relating to, any
additional shares of its Common Stock or securities convertible into or
exchangeable or exercisable for any shares of its Common Stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Representative, other than (1)
grants of stock options or restricted stock to employees, consultants or
directors pursuant to the terms of a plan in effect on the date hereof, (2)
issuances of Common Stock pursuant to the exercise of such options or the
exercise of any other employee stock options outstanding on the date hereof, (3)
issuances of Common Stock pursuant to the Company's dividend reinvestment plan
(if any) or (4) issuances of Common Stock in connection with other acquisitions
of real property or real property companies.
I. REIT QUALIFICATION. The Company will use its best efforts to meet the
requirements to qualify, for the taxable year ending December 31, 2004, for
taxation as a REIT under the Code.
J. NYSE LISTING. The Company will use its best efforts to effect the
listing of the Common Stock (including the Offered Securities) on the NYSE.
K. COMPLIANCE WITH LAWS. During the period when the Prospectus is required
to be delivered under the Act or the Exchange Act, the Company will (1) comply
with all provisions of the Act and the Rules and Regulations and (2) file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations of the Commission thereunder.
L. INVESTMENT COMPANY. The Company will take such steps as shall be
necessary to ensure that neither the Company nor the Operating Partnership shall
become an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
M. REPORTING USE OF PROCEEDS. The Company will file with the Commission
such reports as may be required pursuant to Rule 463 of the Rules and
Regulations.
N. NO STABILIZATION ACTIVITIES. Except for the authorization of actions
permitted to be taken by the Underwriters as contemplated herein or in the
Prospectus, neither the Company nor the Operating Partnership will (1) take,
directly or indirectly, any action designated to cause or to result in, or that
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Offered Securities; (2) sell, bid for or purchase the Offered Securities or pay
any person any compensation for soliciting purchases of the Offered Securities;
or (3) pay or agree to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
several Underwriters to purchase and pay for the Firm Securities on the First
Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Transaction Entities herein, to the accuracy of
the statements of Company officers made pursuant to the provisions hereof, to
22
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
A. ACCOUNTANT'S LETTER. The Representative shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of KPMG LLP ("KPMG") confirming that they are
independent public accountants within the meaning of the Act and the applicable
Rules and Regulations and stating to the effect that:
(1) in their opinion the financial statements examined by them and
included in the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related Rules and Regulations;
(2) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
100, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements (as hereinafter defined);
(3) on the basis of the review referred to in clause (2) above, a
reading of the latest available interim financial statements of Inhale 000
Xxxxxxxxxx Xxxx, L.P. and of Xxxxxxxx Properties Advisors, Inc. ("XXXXXXXX
PROPERTY ADVISORS") and its affiliates, inquiries of officials of Xxxxxxxx
Properties Advisors who have responsibility for financial and accounting
matters, and other specified procedures, nothing came to their attention
that caused them to believe that:
(a) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related Rules and Regulations or that any material modifications
should be made to such unaudited financial statements and summary of
earnings for them to be in conformity with GAAP;
(b) at the date of the latest available balance sheet read by
such accountants, and at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company, Xxxxxxxx Property
Advisors, or its affiliates or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
combined net assets, as compared with amounts shown on the latest
balance sheets included in the Prospectus; or
(c) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income
23
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year for the
combined operations of the Company, Xxxxxxxx Property Advisors, or
its affiliates and with the period of corresponding length ended the
date of the latest income statement included in the Prospectus, in
combined total revenues or combined net income.
except in all cases set forth in one of the above clauses for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(4) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company, Xxxxxxxx Property Advisors, and its
affiliates subject to the internal controls of Xxxxxxxx Property
Advisor's accounting system or are derived directly from such
records by analysis or computation and to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of any entity for which
KPMG provided an audit of certain revenues and expenses) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall mean
the Initial Registration Statement and the Additional Registration Statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration Statements.
B. REGISTRATION STATEMENT EFFECTIVENESS. If the Effective Time of the
Initial Registration Statement is not prior to the execution and delivery of
this Agreement, such Effective Time shall have occurred not later than 10:00
p.m., New York time, on the date of this Agreement or such later date as shall
have been consented to by the Representative. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not later
than 10:00 p.m., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or shall
have occurred at such later date as shall have been consented to by the
Representative. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 4.A of this Agreement. Prior to the Closing Date, no stop order
suspending the effectiveness of a
24
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company, shall be
contemplated by the Commission.
C. SUBSEQUENT EVENTS. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred:
(1) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties,
earnings, results of operations or prospects of the Company and its
Subsidiaries taken as one enterprise, whether or not in the ordinary
course, which, individually or in the aggregate, in the sole judgment of
the Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities;
(2) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the sole judgment of the Representative, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of
dealings in the secondary market;
(3) any suspension or limitation of trading in securities generally
on the NYSE, or any setting of minimum prices for trading on such
exchange;
(4) any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market;
(5) any banking moratorium declared by U.S. Federal or New York
authorities;
(6) any major disruption of settlements of securities or clearance
services in the United States; or
(7) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity, crisis or emergency if,
in the reasonable judgment of the Representative, the effect of any such
attack, outbreak, escalation, act, declaration, calamity, crisis or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities.
D. ISSUER'S COUNSEL'S OPINION. The Representative shall have received an
opinion, dated on such Closing Date, of Xxxxxx & Xxxxxxx LLP, special counsel
for the Company, to the effect that:
(1) Based on certificates from public officials, such counsel
confirms that the Company is qualified to do business in California;
25
(2) Based on certificates from public officials, such counsel
confirms that the Operating Partnership is qualified to do business in the
following States: California, New York, Pennsylvania and Washington;
(3) BMRLLC is a limited liability company duly organized under the
limited liability company laws of the State of Delaware with limited
liability company power and authority to own its properties and to conduct
its business as described in the Registration Statement and the
Prospectus. Based on certificates from public officials, such counsel
confirms that BMRLLC is validly existing and in good standing under the
laws of the State of Delaware and is qualified to do business in
California;
(4) Each of the Contribution Entities (other than Mockingbird Valley
Forge, L.P.) is a limited partnership or limited liability company
under the laws of the State of California with the limited
partnership or limited liability company power and authority, as the case
may be, to own its properties and to conduct its business as described in
the Registration Statement and the Prospectus. Based on certificates from
public officials, such counsel confirms that each of the Contribution
Entities (other than Mockingbird Valley Forge, L.P.) is validly existing
and in good standing under the laws of the State of California;
(5) Assuming the accuracy of, and compliance with, the
representations, warranties and covenants made by each of the contributors
in Exhibit G to the Contribution Agreements, no registration of the OP
Units under the Act or the California Corporate Securities Laws of 1968
is required for the issuance of the OP Units in the manner contemplated by
the Contribution Agreements;
(6) With the consent of the Representative based solely on a
certificate of an officer of the Transaction Entities as to factual
matters, each of the Company and the Operating Partnership is not, and
immediately after giving effect to the sale of the Offered Securities in
accordance with the Underwriting Agreement and the application of the
proceeds as described in the Prospectus under the caption "USE OF
PROCEEDS" will not be required to be registered as, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(7) The execution and delivery of the Underwriting Agreement by the
Transaction Entities, the issuance and sale of the Offered Securities by
the Company to the Underwriters pursuant to the Underwriting Agreement on
the date hereof, and the execution and delivery by each Transaction Entity
and BMRLLC which is a party thereto of, and the consummation of the
transactions contemplated by, the Contribution Agreements and the
Management Agreements, do not:
(a) conflict with, result in the breach of or a default under
any of the agreements filed as exhibits to the Registration
Statement;
(b) violate any federal or California statute, rule or
regulation applicable to any such Transaction Entities;
26
(c) violate the Governing Documents of BMRLLC or each of the
Contribution Entities (other than Mockingbird Valley Forge, L.P.);
or
(d) require any consents, approvals, or authorizations to be
obtained by any such Transaction Entities or BMRLLC, or any
registrations, declarations or filings to be made by such
Transaction Entities, in each case, under any federal or California
statute, rule, or regulation applicable to the Transaction Entities
that have not been obtained or made;
(8) The Registration Statement has become effective under the Act.
With the consent of the Representative, based solely on telephonic
confirmation by a member of the Staff of the Commission on the date of
such opinion, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings
therefor have been initiated by the Commission. Any required filing of the
Prospectus pursuant to Rule 424 under the Act has been made in accordance
with Rule 424 under the Act;
(9) To the best knowledge of such counsel, there are no contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed;
(10) To the best knowledge of such counsel, based solely on oral or
written statements and representations of officers and other
representatives of the Transaction Entities, including the representations
and warranties of the Transaction Entities in this agreement, and docket
searches in the jurisdictions set forth on an exhibit to such counsel's
opinion, there are no actions, suits, proceedings or investigations
pending against the Transaction Entities or Contribution Entities (other
than Mockingbird Valley Forge, L.P.) before any court, governmental agency
or arbitrator which are required to be disclosed in the Prospectus
pursuant to Item 103 of Regulation S-K under the Act, other than those
disclosed therein. Such counsel's opinion may note that docket searches
may be unreliable and may not accurately reflect proceedings before the
respective courts and that such counsel has not undertaken any independent
investigation to determine the accuracy of the docket searches;
(11) The Registration Statement, as of the date it was declared
effective, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements for registration statements on
Form S-11 under the Act and the Rules and Regulations; it being
understood, however, that such counsel need express no opinion with
respect to Regulation S-T or the financial statements, schedules, or other
financial data, included in, or omitted from, the Registration Statement
or Prospectus. Solely for purposes of passing upon the compliance as to
form of the Registration Statement and the Prospectus, such counsel may
assume that the statements made therein are correct and complete;
(12) Each Contribution Agreement and Management Agreement
constitutes a legally valid and binding obligation of each Transaction
Entity and/or BMRLLC that is a
27
party thereto, enforceable against such Transaction Entity and/or BMRLLC
that is a party thereto in accordance with its terms;
(13) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Liquidity and Capital Resources," "Certain Relationships
and Related Transactions - Formation Transactions and Contribution of
Initial Properties" and " - Contribution Agreements," and "Shares Eligible
for Future Sale," and "ERISA Considerations," insofar as they purport to
describe or summarize certain provisions of the agreements, statutes,
regulations or the subject legal proceedings referred to therein, are
accurate descriptions or summaries in all material respects; and
(14) Except for the Registration Rights Agreements, to the best
knowledge of such counsel no Transaction Entity is a party to any
agreement that would (a) require the inclusion in the Registration
Statement of shares of Common Stock of the Company owned by any person or
entity other than the Company or (b) entitle such person to require the
Company to file a registration statement under the Act with respect to any
securities of the Company.
In rendering such opinions, such counsel may limit its opinions to the
federal laws of the United States of America and the laws of the State of
California, and matters specifically governed thereby. In rendering such
opinions, such counsel may also rely, as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Company and public officials.
In addition, such counsel shall state in a separate letter that:
The primary purpose of our professional engagement was not to
establish or confirm factual matters or financial or quantitative
information. Therefore, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in, the Registration Statement or the Prospectus,
(except to the extent expressly set forth in the numbered paragraphs 9 and
13 of such counsel's opinion letter to the Representative of even date),
and have not made an independent check or verification thereof (except as
aforesaid). However, in the course of acting as counsel to the Company in
connection with the preparation by the Company of the Registration
Statement and Prospectus, we reviewed the Registration Statement, and the
Prospectus, and participated in conferences and telephone conversations
with officers and other representatives of the Company, the independent
public accountants for the Company, your representatives, and your
counsel, during which conferences and conversations the contents of the
Registration Statement and the Prospectus and related matters were
discussed. We also reviewed and relied upon certain corporate records and
documents, letters from counsel and accountants, and oral and written
statements of officers and other representatives of the Company and others
as to the existence and consequence of certain factual and other matters.
Based on our participation, review and reliance as described above,
we advise you that no facts came to our attention that caused us to
believe that the Registration
28
Statement, at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date or as of the date of the opinion,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that we express no belief with respect to
the financial statements, schedules, or other financial data included in,
or omitted from, the Registration Statement or the Prospectus.
E. TAX OPINION. The Representative shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxxxx LLP, special tax counsel for the Company,
to the effect that:
(1) The statements in the Prospectus under the caption "Federal
Income Tax Considerations" insofar as they purport to summarize certain
provisions of the agreements, statutes, regulations and other legal
matters referred to therein, are accurate summaries in all material
respects; and
(2) As of the date of such opinion, the Company will be organized in
conformity with the requirements for qualification as a real estate
investment trust (a "REIT") under the Internal Revenue Code 1986, as
amended (the "CODE"), and its proposed method of operation will enable it
to meet the requirements for qualification and taxation as a REIT under
the Code.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. In
addition, in rendering such opinion, counsel may rely on and assume the accuracy
of an opinion of Xxxxxxx LLP ("VENABLE"), special Maryland counsel of the
Company, dated as of the Closing Date, with respect to certain matters of
Maryland law.
X. XXXXXXX OPINION. The Representative shall have received an opinion,
dated such Closing Date, of Venable, special Maryland counsel of the Company, to
the effect that:
(1) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in good
standing with the SDAT. The Company has the corporate power to own its
properties and to conduct its business in all material respects as
described in the Prospectus under the caption "Business and Properties,"
and to enter into and perform its obligations under the Underwriting
Agreement and the Formation Transaction Agreements.
(2) The Operating Partnership is a limited partnership duly formed
and existing under and by virtue of the laws of the State of Maryland and
is in good standing with the SDAT. The Operating Partnership has the
limited partnership power to own its properties and to conduct its
business in all material respects as described in the Prospectus under the
caption "Business and Properties," and to enter into and perform its
obligations under the Underwriting Agreement and the Formation Transaction
Agreements to which it is a party.
29
(3) The Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization," and the issued and
outstanding shares of Common Stock (other than the Offered Securities)
(the "COMPANY OUTSTANDING SHARES") have been duly authorized and validly
issued and are fully paid and non-assessable. The terms of the Common
Stock conform, in all material respects, to the statements and
descriptions related thereto contained in the Prospectus. The issuance of
the Company Outstanding Shares by the Company was not subject to
preemptive or other similar rights arising under the MGCL, the Company
Charter or the Company Bylaws. The Common Stock Certificate complies in
all material respects with the applicable requirements of the MGCL, the
Company Charter, and the Company Bylaws. Except as disclosed in the
Prospectus and based on a certificate of an officers of the Transaction
Entities and upon any facts otherwise known to such counsel: (a) no shares
of Common Stock are reserved for any purpose; (b) except for the OP Units,
there are no outstanding securities convertible into or exchangeable for
any shares of Common Stock; and (c) except for the warrant to Xxxxxxx
Xxxxx, there are no outstanding options, rights (preemptive or otherwise)
or warrants to purchase or subscribe for shares of Common Stock or any
other securities of the Company.
(4) The Company has the full power and authority to authorize,
issue, and sell the Offered Securities as contemplated by the Underwriting
Agreement. The issuance of the Offered Securities has been duly authorized
and, when issued and delivered by the Company pursuant to the Resolutions
(as defined in such opinion) and the Underwriting Agreement against
payment of the consideration set forth herein, the Offered Securities will
be validly issued, fully paid and non-assessable and will conform, in all
material respects, to the description thereof contained in the Prospectus.
The issuance of the Offered Securities by the Company is not subject to
preemptive or other similar rights arising under the MGCL, the Company
Charter, or the Company Bylaws. The form of certificate used to evidence
the Shares is in due and proper form and complies with all applicable
statutory requirements under the laws of the State of Maryland and the
Company Charter and the Company Bylaws.
(5) The OP Units issued in connection with the Formation
Transactions, including, without limitation, the OP Units to be issued to
the Company, have been duly authorized and validly issued and are fully
paid and non-assessable. The issuance of the OP Units by the Operating
Partnership is not subject to preemptive or other similar rights arising
under the Maryland Revised Uniform Limited Partnership Act or the
Operating Partnership Agreement. The terms of the OP Units conform, in all
material respects, to the description thereof contained in the Prospectus.
Based solely on the Officers Certificate (as defined in such counsel's
opinion) and upon any facts otherwise known to such counsel, there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or subscribe for OP Units or any other securities of the
Operating Partnership.
(6) The execution, delivery and performance of the Underwriting
Agreement, the Formation Transaction Agreements, and the transactions
contemplated thereby and the sale and issuance of the Offered Securities
do not conflict with or result in a breach or violation of, or constitute
a default under, (a) any Maryland law, or any decree, rule or
30
regulation of any Maryland governmental authority applicable to the
Transaction Entities or (b) the Company Charter, the Company Bylaws, or
the Operating Partnership Agreement.
(7) The execution and delivery of the Underwriting Agreement, the
Management Agreements and the Formation Transaction Agreements have been
duly authorized by all necessary corporate or limited partnership action,
as applicable, of each Transaction Entity that is a party thereto. The
Underwriting Agreement, the Management Agreements and the Formation
Transaction Agreements have been executed and, so far as is known to us,
delivered by each Transaction Entity that is a party thereto. The
Operating Partnership Agreement constitutes the legal, valid, and binding
obligation of each Transaction Entity that is a party thereto, enforceable
against each Transaction Entity that is a party thereto in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity and, with respect to
equitable relief, the discretion of the court before which any proceeding
therefor may be brought (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(8) The information in the Prospectus under the captions "Risk
Factors-Risks Related to Our Organizational Structure," "Policies with
Respect to Certain Activities," "Description of Securities," "Certain
Provisions of Maryland Law and of Our Charter and Bylaws" and "Description
of the Partnership Agreement of BioMed Realty, L.P.," as of the date of
the Prospectus, insofar as such information relates to provisions of
Maryland law or the Company's or the Operating Partnership's
organizational documents, fairly summarizes such provisions of Maryland
law or the Company's or the Operating Partnership's organizational
documents, in all material respects.
(9) The execution, delivery and performance of the Underwriting
Agreement, the Management Agreements and the Formation Transaction
Agreements and the transactions contemplated thereby and the sale and
issuance of the Offered Securities do not require any consents, approvals,
authorizations, or orders to be obtained by any such Transaction Entities,
or any registrations, declarations, or filings to be made by such
Transaction Entities, in each case, under any Maryland statute, rule, or
regulation applicable to the Transaction Entities that have not been
obtained or made.
In rendering such opinions, such counsel may limit its opinions to the
laws of the State of Maryland, and matters specifically governed thereby. In
rendering such opinion, such counsel may rely, as to matters of fact (but not as
to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
G. UNDERWRITERS' COUNSEL'S OPINION. On any Closing Date other than the
First Closing Date, the Representative shall have received from Xxxxxx & Bird
LLP, counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration Statements,
the Prospectus and other related matters as the Representative may require, and
the Company shall have furnished to such counsel such documents as they
31
request for the purpose of enabling them to pass upon such matters. In rendering
such opinion, Xxxxxx & Bird LLP may rely as to the organization or incorporation
of the Transaction Entities and all other matters governed by Maryland law upon
the opinion of Venable, referred to above.
H. OFFICERS' CERTIFICATES. Each Transaction Entity shall have furnished
the Representative a certificate, dated such Closing Date, of its, or its
general partner's or managing member's chief executive officer(s) and the chief
financial officer in which such officers, to the best of their knowledge after
reasonable investigation, shall state that:
(1) the representations and warranties of the Transaction Entities
in this Agreement are true and correct;
(2) the Transaction Entities have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to such Closing Date;
(3) no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and
(4) the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter.
I. ACCOUNTANT'S LETTER. The Representative shall have received a letter,
dated such Closing Date, of KPMG LLP which meets the requirements of Section
5.A, except that the specified date referred to in such subsection will be a
date not more than three days prior to such Closing Date for the purposes of
this subsection.
J. LOCK-UP AGREEMENTS. On or prior to the date of this Agreement, the
Representative shall have received lockup letters from each of the Key Officers
and each person or entity holding or that will hold following consummation of
the Formation Transactions one percent or more of the Common Stock (assuming all
OP Units not held by the Company are converted to Common Stock of the Company)
of the Company (excepting stockholders not affiliated with the Company who
purchase Offered Securities).
K. NASD APPROVAL. The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
L. NYSE LISTING. At the Closing Date, the Offered Securities shall have
been approved for listing on the NYSE, subject only to official notice of
issuance.
M. SATISFACTION OF OTHER CONDITIONS. On the Closing Date, counsel for the
Underwriters shall have been furnished with such other documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Offered Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy
32
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Transaction
Entities in connection with the issuance and sale of the Offered Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
N. TITLE POLICIES. There shall be irrevocable commitments to provide title
coverage as of the Closing Date as set forth on Exhibit 1.
O. SATISFACTION OF UNDERWRITERS' COUNSEL. All opinions, letters, evidence
and certificates mentioned above or elsewhere in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Underwriters.
P. COPIES OF DOCUMENTS; WAIVER OF COMPLIANCE. The Company will furnish the
Representative with such conformed copies of such opinions, certificates,
letters and documents as the Representative reasonably requests. The
Representative may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
6. INDEMNIFICATION AND CONTRIBUTION.
A. The Transaction Entities, jointly and severally, will indemnify and
hold harmless each Underwriter, its partners, members, directors, officers,
employees and agents and each person, if any, who controls such Underwriter
within the meaning of the Act or the Exchange Act, against any losses, claims,
damages, liabilities or expenses, joint or several, to which any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation or at common law, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such loss, claim, damage, liability, action or
expense as such expenses are incurred; provided, however, that the Transaction
Entities will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in Section 6.B below; provided further that with
respect to any untrue statement or omission of material fact made in any
preliminary Prospectus, the indemnity agreement contained in this Section 6.A
shall not inure to the benefit of any Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the Offered Securities
concerned, to the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstances where it shall have been determined
by a court of competent jurisdiction by final and non-appealable judgment
33
that (w) the Company had previously furnished copies of the Prospectus to the
Representative, (x) delivery of the Prospectus was required by the Act to be
made to such person, (y) the untrue statement or omission of a material fact
contained in the preliminary Prospectus was corrected in the Prospectus and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus.
B. Each Underwriter severally and not jointly will indemnify and hold
harmless each Transaction Entity, each of its directors and officers who signs
the Registration Statement or who consents to being named as a director upon the
First Closing Date and each person, if any who controls the Company within the
meaning of the Act or the Exchange Act, against any losses, claims, damages,
liabilities or expenses to which any of them may become subject, under the Act
to which they may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation or at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by each indemnified party in
connection with investigating or defending any such loss, claim, damage,
liability, action or expense as such expenses are incurred, it being understood
and agreed that the only such information furnished on behalf of each
Underwriter consists of the following information: the list of Underwriters and
their respective participation in the sale of the Offered Securities, the
concession and reallowance sentences and the paragraphs related to
stabilization, syndicate covering transactions and penalty bids appearing under
the caption "Underwriting" in the Prospectus.
C. Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
Section 6.A or 6.A above, notify, in writing, the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under Section 6.A or 6.A above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses. In case any such
action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
anything contained herein to the contrary, if indemnity may be
34
sought pursuant to the last paragraph in Section 6.A hereof in respect to such
action or proceeding, then, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for the indemnified parties. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party, and (iii) does not include any undertaking
or obligation to act or to refrain from acting by the indemnified party.
D. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under Section 6.A or 6.A
above for any reason, then each indemnifying party (with respect to the
Transaction Entities, jointly and severally) shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to in Section 6.A or 6.A above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Transaction Entities on the one hand and one or more of the Underwriters on the
other from the offering of the Offered Securities 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 Transaction Entities
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable considerations.
The relative benefits received by the Transaction Entities on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Transaction Entities bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Transaction Entities or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to in the first sentence of this Section 6.D
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this Section 6.D. Notwithstanding the
provisions of this Section 6.D, no Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Offered Securities)
shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Offered Securities purchased by such
Underwriter hereunder. 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 in this Section 6.D to contribute are several in
proportion to their respective underwriting obligations and not joint. The
Transaction Entities and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or another
method of allocation that does not take account of the equitable considerations
referred to above.
35
E. The obligations of the Transaction Entities under this Section shall be
in addition to any liability that the Transaction Entities may otherwise have
and shall extend, upon the same terms and conditions, to each partner, member,
director, officer, employee or agent of any Underwriter and any person, if any,
who controls any Underwriter within the meaning of the Act or the Exchange Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Transaction
Entities, to each officer of the Transaction Entities who has signed a
Registration Statement and to each person, if any, who controls the Transaction
Entities within the meaning of the Act.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities hereunder on either the First or any
Optional Closing Date and the aggregate number of shares of Offered Securities
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representative
may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representative and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 7 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "UNDERWRITER" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
8. EXPENSES. Whether or not the transactions contemplated hereby are consummated
or this Agreement is terminated, the Company agrees to pay or cause to be paid
the following: (1) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the Act
and all other filing fees, other fees and expenses in connection with the
preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Preliminary Prospectus to the Underwriters and
dealers; (2) the printing and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Preliminary Prospectus, any Blue Sky memoranda,
this Agreement and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares; (3) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws or Blue Sky laws, including
reasonable attorneys' fees and out-of-pocket expenses of the counsel for the
Underwriters in connection therewith; (4) the filing fees incident to securing
any required review by the NASD of the fairness of the terms of the sale of the
36
Shares and the reasonable fees and disbursements of the Underwriters' counsel
relating thereto; (5) the fees and expenses associated with listing the Common
Stock on the NYSE; (6) the cost of preparing stock certificates; (7) the costs
and charges of any transfer agent or registrar; (8) the cost of the tax stamps,
if any, in connection with the issuance and delivery of the Shares to the
respective Underwriters; (9) all other fees, costs and expenses referred to in
Item 31 of the Registration Statement; and (10) the transportation, lodging,
graphics and other expenses incidental to the Company's preparation for and
participation in the "roadshow" for the offering contemplated hereby. Except as
provided in this Section 8 and in Section 7 hereof, the Underwriters shall pay
their own expenses, including the fees and disbursements of their counsel.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Transaction Entities or its respective officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Transaction Entities or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and Section 8 and the respective obligations of the
Transaction Entities and the Underwriters pursuant to Section 6 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 1 and all obligations under Section 4
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 7 or the occurrence of any
event specified in Sections 5.C(2), 5.C(3), 5.C(5), 5.C(6), or 5.C(7), the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative, c/o Raymond Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000, Attention: ________________ with a copy to Xxxxxx &
Bird LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxx X. Xxxxxxx, Esq. or, if sent to the Transaction Entity, will be
mailed, delivered or telegraphed and confirmed to the Company, Attention:
General Counsel with a copy to Xxxxxx & Xxxxxxx LLP, Attention: Xxxxx X. Xxxxxx,
Esq.; provided, however, that any notice to an Underwriter pursuant to Section 6
will be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person
will have any right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
37
13. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
14. APPLICABLE LAW AND VENUE. This agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida, without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in Florida in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
38
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
BIOMED REALTY TRUST, INC.
By:
--------------------------------------
Name: Xxxx X. Gold
Title: Chief Executive Officer
BIOMED REALTY, L.P.
By: BioMed Realty Trust, Inc., its general partner
By:
--------------------------------------
Name: Xxxx X. Gold
Title: Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx & Associates, Inc.
By:
--------------------------------------
Name:
Title:
Acting on behalf of itself and as the Representative of the several
Underwriters.
39
SCHEDULE I
UNDERWRITERS
Number of Firm
Underwrite Securities
---------- ----------
Xxxxxxx Xxxxx & Associates, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
KeyBanc Capital Markets, a division of McDonald Investments Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Capital Markets Corporation
----------
Total 27,000,000
==========
SCHEDULE A
SUBSIDIARIES
SCHEDULE B
MANAGEMENT AGREEMENTS
SCHEDULE C
TITLE REPORTS
SCHEDULE D
TENANT ESTOPPEL CERTIFICATES
EXHIBIT 1
TITLE COMMITMENTS
