BioMed Realty, L.P. (a Maryland limited partnership) As Issuer BioMed Realty Trust, Inc. (a Maryland corporation) As Guarantor $400,000,000 3.85% Senior Notes due 2016 Underwriting Agreement
Exhibit 1.1
Execution Version
BioMed Realty, L.P.
(a Maryland limited partnership)
As Issuer
(a Maryland limited partnership)
As Issuer
BioMed Realty Trust, Inc.
(a Maryland corporation)
As Guarantor
(a Maryland corporation)
As Guarantor
$400,000,000
3.85% Senior Notes due 2016
3.85% Senior Notes due 2016
March 23, 2011
XXXXX FARGO SECURITIES, LLC
KEYBANC CAPITAL MARKETS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters listed on Schedule I hereto
c/x Xxxxx Fargo Securities, LLC
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
KEYBANC CAPITAL MARKETS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters listed on Schedule I hereto
c/x Xxxxx Fargo Securities, LLC
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
BioMed Realty, L.P., a Maryland limited partnership (the “Operating Partnership”), and BioMed
Realty Trust, Inc., a Maryland corporation (the “Company” and, together with the Operating
Partnership, the “Transaction Entities”), each confirms its agreement with Xxxxx Fargo Securities,
LLC (“Xxxxx Fargo Securities”), KeyBanc Capital Markets Inc. (“KeyBanc”), Xxxxxx Xxxxxxx & Co.
Incorporated (“Xxxxxx Xxxxxxx”) and each of the other underwriters named in Schedule I
hereto (the “Underwriters”) for whom Xxxxx Fargo Securities, KeyBanc and Xxxxxx Xxxxxxx are acting
as representatives (the “Representatives”) with respect to the issuance and sale by the Operating
Partnership and the purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth on Schedule I of $400,000,000 aggregate principal
amount of 3.85% Senior Notes due 2016 (the “Offered Securities”), subject to the terms and
conditions set forth below. The Offered Securities are to be issued pursuant to an indenture (the
“Base Indenture”) to be dated on or about March 30, 2011 among the Operating Partnership, U.S. Bank
National Association, as trustee (the “Trustee”), and the Company, as guarantor, as supplemented by
a first supplemental indenture (the “Supplemental Indenture” and, together with the Base Indenture,
the “Indenture”) to be dated on or about March 30, 2011 among the Operating Partnership, the
Trustee and the Company, as guarantor. This agreement by and among the Company, the Operating
Partnership and the Underwriters shall be referred to as this “Agreement.”
The Offered Securities will be fully and unconditionally guaranteed as to the payment of
principal and interest by the Company (the “Guarantees”) in accordance with the terms of the
Offered Securities and the Indenture.
The Offered Securities issued in book entry form will be issued to Cede & Co. as nominee of
The Depository Trust Company (“DTC”).
The Company and the Operating Partnership have filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (Nos.
333-161751 and 333-161751-01), as amended by post-effective Amendment No. 1 thereto
(“Amendment No. 1”), including the related base prospectus dated November 15, 2010 (the “Base
Prospectus”), covering the registration of the Offered Securities under the Securities Act of 1933,
as amended (the “Act”). Such registration statement, as amended by Amendment No. 1, became
effective upon filing pursuant to Rule 462(e) of the rules and regulations of the Commission under
the Act (the “Securities Act Regulations”) on November 15, 2010. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus supplement in accordance
with the provisions of Rule 430B of the Securities Act Regulations (“Rule 430B”) and paragraph (b)
of Rule 424 (“Rule 424(b)”) of the Securities Act Regulations. Any information included in such
prospectus supplement that was omitted from such registration statement at the time it became
effective but that is deemed to be part of and included in such registration statement pursuant to
Rule 430B is referred to as “Rule 430B Information.” Each base prospectus and prospectus
supplement used in connection with the offering of the Offered Securities that omitted Rule 430B
Information is hereinafter collectively called a “preliminary prospectus.”
Such registration statement, at any given time, including Amendment No. 1 and any other
amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference thereto pursuant to Item 12 of Form S-3 under the Act at such time and
the documents otherwise deemed to be a part thereof or included therein by the Securities Act
Regulations, and the Rule 430B Information is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The Base Prospectus and the final prospectus supplement in the form first
furnished (electronically or otherwise) to the Underwriters for use in connection with the offering
of the Offered Securities (whether to meet the requests of purchasers pursuant to Rule 173 under
the Act or otherwise), including the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act at the time of execution of this Agreement, is herein called the
“Prospectus.” The Commission has not issued any order preventing or suspending the use of any
preliminary prospectus.
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 Electronic Data
Gathering, Analysis and Retrieval System (“XXXXX”)), all references to the “Original Registration
Statement,” “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.
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All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus, the Prospectus or the General Disclosure Package (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in or otherwise deemed by Securities Act Regulations
to be a part of or included in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) which is incorporated by reference in or otherwise deemed by Securities Act
Regulations to be a part of or included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
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 as of the date hereof, as of the Applicable Time referred to in Section 1.A hereof,
and as of the Closing Date referred to in Section 2 hereof, that:
A. Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Act;
No Misleading Statements; Conformity with XXXXX filings.
1. (A) At the time of filing the Original Registration Statement, (B) at the time of
filing the most recent amendment thereto for purposes of complying with Section 10(a)(3) of
the Securities Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C)
at the time the Company, the Operating Partnership or any person acting on their behalf
(within the meaning, for this clause only, of Rule 163(c) of the Securities Act Regulations)
made any offer relating to the Offered Securities in reliance on the exemption of Rule 163 of
the Securities Act Regulations (“Rule 163”) and (D) at the date hereof, the Company (x) was
and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act Regulations
(“Rule 405”) and (y) was not and is not an “ineligible issuer,” as defined in Rule 405. The
Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405,
and the Offered Securities, since their registration on the Registration Statement, have been
and remain eligible for registration by the Company and the Operating Partnership on a Rule
405 “automatic shelf registration statement.” Neither the Company nor the Operating
Partnership has received from the Commission any notice pursuant to Rule 401(g)(2) of the
Securities Act Regulations objecting to the use of the automatic shelf registration statement
form.
At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company, the Operating Partnership or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of
the Offered Securities and at the date hereof, each of the Company and the Operating
Partnership was not and is not an“ineligible issuer,” as defined in Rule 405.
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2. The Original Registration Statement became effective upon filing under
Rule 462(e) of the Securities Act Regulations (“Rule 462(e)”) on September 4, 2009, Amendment No. 1
became effective upon filing under Rule 462(e) on November 15, 2010, and any other post-effective
amendment thereto also became effective upon filing under Rule 462(e).
Any offer that is a written communication relating to the Offered Securities made prior to the
filing of the Registration Statement by the Company or any person acting on its behalf (within the
meaning, for this paragraph only, of Rule 163(c) of the Securities Act Regulations) has been filed
with the Commission in accordance with the exemption provided by Rule 163 and otherwise complied
with the requirements of Rule 163, including without limitation the legending requirement, to
qualify such offer for the exemption from Section 5(c) of the Act provided by Rule 163.
At the respective times the Original Registration Statement, the Registration Statement and
any amendment thereto became effective, at the deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Regulations, at the date of this
Agreement and at the Closing Date, the Registration Statement and any amendments or supplements
thereto complied and will comply, in all material respects with the requirements of the Act, the
Securities Act Regulations and the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”) and did not and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; the Prospectus and any further amendments or supplements thereto, at the time the
Prospectus or such amendment or supplement was issued, at the date hereof, at the time of filing
pursuant to Rule 424(b) and at the Closing Date, complied and will comply, in all material respects
with the requirements of the Act and the Securities Act Regulations and did not, and any amendment
thereto will not, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each preliminary prospectus and the
prospectus filed as part of the Original Registration Statement as originally filed or as part of
any amendment or supplement thereto or filed pursuant to Rule 424 of the Securities Act
Regulations, complied when so filed in all material respects with the Act and the Securities Act
Regulations. The conditions for the use of Form S-3, as set forth in the General Instructions
thereto, are satisfied, and the Registration Statement meets, and the offering and sale of the
Offered Securities as contemplated hereby complies with, the requirements of Rule 415 of the
Securities Act Regulations.
3. As of the Applicable Time (as defined below) and the Closing Date, neither (x) the Issuer
General Use Free Writing Prospectus(es) (as defined below) identified on Schedule III
hereto and the Statutory Prospectus (as defined below), considered together (collectively, the
“General Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus
(as defined below), when considered together with the General Disclosure Package, included any
untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading.
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As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 2:45 p.m. (Eastern time) on March 23, 2011 or such other time as
agreed by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the Securities Act Regulations (“Rule 433”), relating to the Offered Securities that
(i) is required to be filed with the Commission by the Company, (ii) is a “road show for an
offering that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Offered Securities or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is intended for general distribution to prospective investors.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the base prospectus relating to the Offered
Securities that is included in the Registration Statement immediately prior to that time, including
any document incorporated by reference therein and the preliminary prospectus supplement relating
to the Offered Securities immediately prior to such time.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Offered Securities or until any earlier date
that the issuer notified or notifies the Representatives as described in Section 4.C, did not, does
not and will not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus, including any document
incorporated by reference therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
The representations and warranties in Section 1.A(2) and (3) of this Agreement shall not apply
to statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with written information furnished to
the Company and/or the Operating Partnership by any Underwriter through the Representatives
expressly for use therein.
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
under the Act.
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B. No Stop Order. No stop order suspending the effectiveness of the 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.
C. Incorporated Documents. Each document incorporated or deemed to be incorporated by
reference in the Prospectus, the Registration Statement or the General Disclosure Package (the
“Incorporated Documents”), when such Incorporated Document was filed with the Commission, complied
in all material respects with the requirements of the Act and the Securities Act Regulations or the
Exchange Act and the rules and regulations of the Commission thereunder (the “Exchange Act
Regulations”), as applicable, in effect at the time of the filing, and, when read together with the
other information in the Prospectus, (i) at the time the Registration Statement became effective,
(ii) at the earlier of the time the Prospectus was first used and the date and time of the first
contract of sale of Offered Securities in this offering, and (iii) at the Closing Date, each such
Incorporated Document did not or will not, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
The Operating Partnership’s Registration Statement on Form 10 filed with the Commission on October
27, 2010 (the “Form 10”) was declared effective by the Commission on November 2, 2010, and no stop
order suspending the effectiveness of the Form 10 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.
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, the
Indenture, the Offered Securities or the Guarantees (collectively, the “Transaction Agreements”)
and as general partner of the Operating Partnership to cause the Operating Partnership to enter
into and perform the Operating Partnership’s obligations under the 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 the Subsidiaries (as defined below) 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 the Transaction Agreements. The Company is the sole general partner of the
Operating Partnership and holds the number and/or percentage of units representing partnership
interests in the Operating Partnership (“OP Units”) as disclosed in or incorporated by reference in
the Prospectus, as of the dates set forth therein, free and clear of any security interests, liens,
mortgages, encumbrances, pledges, claims, defects or other restrictions of any kind (collectively,
“Liens”). The Fourth Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, as amended (the “Operating Partnership Agreement”) is in full force and
effect. The aggregate percentage interests of the Company and the limited partners in the Operating
Partnership are as set forth in or incorporated by reference in the Prospectus, as of the dates set
forth therein.
F. Subsidiary Formation; Good Standing; Qualification; Liens; Pre-Emptive Rights. Each direct
or indirect subsidiary of the Company and of the Operating Partnership, all of which are listed on
Schedule IV hereto (each, a “Subsidiary” and together the “Subsidiaries”), has been
duly formed and is validly existing as a corporation, limited partnership, limited liability
company or common law trust, 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 other Transaction Agreements; and is duly qualified to do
business as a foreign corporation, limited partnership or limited liability company, as the case
may be, 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; 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 all outstanding shares of
its capital stock or other ownership interests are owned by the Company or the Operating
Partnership, directly or through the Subsidiaries, free and clear of any Liens, except as described
in the Prospectus or where such Liens would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. None of the equity interests of any Subsidiary were
issued in violation of the preemptive or other similar rights of any securityholder of such
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, except as set
forth in the organizational documents of such Subsidiary.
G. Capital of the Company; Options; No Preemptive Rights. The authorized, issued and
outstanding capital stock of the Company is in all material respects as set forth in the Company’s
most recent Annual Report on Form 10-K incorporated by reference in the Prospectus. 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. Further, (i) except for shares of Common
Stock reserved for issuance (A) upon exchange or redemption of the OP Units or long term incentive
plan units of the Operating Partnership (the “LTIP Units”), (B) in connection with the existing
BioMed Realty Trust, Inc. and BioMed
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Realty, L.P. 2004 Incentive Award Plan, as amended and restated effective May 27, 2009 (the
“Equity Incentive Plan”), (C) upon exchange of the Operating Partnership’s 4.50% Exchangeable
Senior Notes due 2026 (the “2026 Exchangeable Notes”), (D) upon exchange of the Operating
Partnership’s 3.75% Exchangeable Senior Notes due 2030 (the “2030 Exchangeable Notes,” and together
with the 2026 Exchangeable Notes, the “Exchangeable Notes”), or (E) in connection with the equity
distribution agreements entered into by the Company and the Operating Partnership on September 4,
2009 permitting sales through certain sales agents and/or principals from time to time of shares of
Common Stock with an aggregate offering price of up to $120 million, all as disclosed in the
Prospectus, no shares of Common Stock are reserved for any purpose; (ii) except for the OP Units,
LTIP Units and the Exchangeable Notes as disclosed in the Prospectus, there are no outstanding
securities convertible into or exchangeable for any shares of Common Stock; and (iii) except for
the Exchangeable Notes disclosed in the Prospectus and in connection with our investment in one of
our joint ventures, pursuant to which the joint venture party has the right to require the
Operating Partnership to issue OP Units in connection with a put call option, which represents less
than 1% of the Company’s currently outstanding Common Stock, 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 or of the Operating Partnership.
H. Authorization of Issuance of Offered Securities; Conformity with Applicable Laws. The
Offered Securities have been duly authorized by the Operating Partnership and the Company, and, at
the Closing Date, will have been duly executed by the Operating Partnership and the Company and,
when authenticated, issued and delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this Agreement, will constitute valid
and binding obligations of the Operating Partnership and the Company, enforceable against the
Operating Partnership and the Company in accordance with their 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 therefor 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 “Enforceability
Exceptions”), and will be in the form contemplated by, and entitled to the benefits of, the
Indenture. Upon payment of the purchase price and delivery of such Offered Securities in accordance
herewith, the Underwriters will receive good title thereto, free and clear of all Liens. With
respect to the Operating Partnership, the Offered Securities will rank pari passu with all
unsecured and unsubordinated indebtedness of the Operating Partnership that is outstanding at the
Closing Date or that may be incurred thereafter, except that such Offered Securities will be
effectively subordinated to (Y) the claims of each existing and future secured creditor of the
Operating Partnership to the extent of the value of the collateral securing such
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indebtedness and (Z) all existing and future preferred equity and third-party indebtedness and
other liabilities of the subsidiaries of the Operating Partnership.
I. Authorization of the Guarantees. The Guarantees have been duly authorized by the Company
and, at the Closing Date, will have been duly executed by the Company and, when the Offered
Securities are issued and delivered in the manner provided for in the Indenture, will constitute
valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms, except for the Enforceability Exceptions, and will be in the form contemplated by, and
entitled to the benefits of, the Indenture. With respect to the Company, the Guarantees will rank
pari passu with all unsecured and unsubordinated indebtedness of the Company that is outstanding at
the Closing Date or that may be incurred thereafter, except that such Guarantees will be
effectively subordinated to (Y) the claims of each existing and future secured creditor of the
Company to the extent of the value of the collateral securing such indebtedness and (Z) all
existing and future preferred equity and third-party indebtedness and other liabilities of the
subsidiaries of the Company.
J. Authorization of OP Units; Conformity with Applicable Laws; No Preemptive Rights. The
issued and outstanding OP Units and Series A preferred units of limited partnership interest in the
Operating Partnership (the “Series A Units”) have been duly authorized for issuance by the
Operating Partnership to the holders thereof and are validly issued, fully paid and non-assessable,
have been offered and sold or exchanged by the Operating Partnership in compliance with applicable
laws and conform in all material respects to the description thereof contained in the Prospectus.
None of the OP Units are subject to or were issued in violation of the preemptive or other similar
rights of any securityholder of the Operating Partnership.
K. No Other Brokerage Fees. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Transaction Entities, any Subsidiary and any person that
would give rise to a valid claim against the Transaction Entities, any Subsidiary, or any
Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this
offering.
L. No Registration Rights. Except for (i) the Registration Rights Agreements entered into in
connection with the Company’s initial public offering by and among the Company, the Operating
Partnership and the holders of OP Units party thereto dated as of August 13, 2004, as amended (the
“Unitholder Registration Rights Agreements”), (ii) the Registration Rights Agreement entered into
in connection with the issuance of the 2026 Exchangeable Notes by and among the Company and the
initial purchasers of the 2026 Exchangeable Notes dated as of September 25, 2006, the Registration
Rights Agreement entered into in connection with the issuance of the 2030 Exchangeable Notes by and
among the Company and the initial purchasers of the 2030 Exchangeable Notes dated as of January 11,
2010 and the Registration Rights Agreement entered into in connection with the issuance of the
6.125% Senior Notes due 2020 dated as of April 29, 2010 (collectively, the “Notes Registration
Rights Agreements”) and (iii) the Registration Rights Agreement entered into in connection with the
formation of BMR-PR II LLC by and between the Company and the Prudential Insurance Company of
America dated as of April 4, 2007 (the “JV Registration Rights
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Agreement”), 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. 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 include such securities in the securities registered pursuant to the Registration
Statement.
M. No Violations or Defaults. None of the Transaction Entities nor the Subsidiaries, (i) is in
violation of its charter or by-laws or other similar organizational 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 the 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, individually or in the aggregate, 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 any of the Transaction Agreements, except as
have been obtained or made under the Act and as may be required under state securities laws or the
rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or that the absence of which
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
O. Non-Contravention. Except as disclosed in the Prospectus, the execution, delivery and
performance of the Transaction Agreements by the Transaction Entities and the consummation of the
transactions contemplated hereby and thereby (including the issuance and sale of the Offered
Securities and the use of the proceeds from the sale of the Offered Securities as described in the
Prospectus under “Use of Proceeds”) 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 or foreign, having jurisdiction over the
Transaction Entities or any of the Subsidiaries or any of their properties, assets or business
currently owned by them; (ii) any term, condition or provision of any Agreements or Instruments; or
(iii) the charters, by-laws or other organizational documents,
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as applicable, of the Transaction Entities or any of the Subsidiaries, except for such conflicts,
breaches, violations or defaults that (with respect to subclauses (i) and (ii) above) would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 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, the
Operating Partnership or any Subsidiary.
P. Validity and Sufficiency of Agreements. Each of this Agreement, the Offered Securities and
the Guarantees has been duly and validly authorized, executed and delivered by each of the
Transaction Entities party thereto. Each of this Agreement, the Offered Securities and the
Guarantees 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 in
accordance with its terms, except for the Enforceability Exceptions. The Indenture has been duly
authorized by the Company and the Operating Partnership and duly qualified under the Trust
Indenture Act and, when duly executed and delivered by the Trustee, will have been duly executed
and delivered by, and will constitute a valid and legally binding agreement of, each of the Company
and the Operating Partnership, enforceable against each of the Company and the Operating
Partnership in accordance with its terms, except for the Enforceability Exceptions.
Q. Licenses. The Transaction 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 reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
The Transaction Entities and the Subsidiaries are in compliance with the terms and conditions of
all such Licenses except as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
R. Financial Statements. The financial statements included in or incorporated by reference
into the Registration Statement, the Prospectus and the General Disclosure Package, together with
the related financial statement schedule and notes, present fairly (1) the financial position of
the Company, the Operating Partnership and their respective consolidated Subsidiaries at the dates
indicated; and (2) the results of operations, equity and cash flows of the Company, the Operating
Partnership and their respective consolidated Subsidiaries for the periods specified; said
financial statements have been prepared from the books and records of the Company, the Operating
Partnership and their respective consolidated Subsidiaries in conformity with U.S. generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The related financial statement schedule incorporated by reference into the Registration
Statement, the Prospectus and General Disclosure Package, when considered in relation to the basic
consolidated financial statements taken as a whole, presents fairly, in all material respects, the
information required to be stated therein. The selected
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financial data included in the Registration Statement, the Prospectus and General Disclosure
Package present fairly the information set forth therein and have been compiled on a basis
consistent with that of the audited and unaudited financial statements included in the Registration
Statement, Prospectus and General Disclosure Package. The financial statements of the businesses or
properties acquired or proposed to be acquired, if any, included in, or incorporated by reference
into, the Registration Statement, the General Disclosure Package or the Prospectus present fairly
in all material respects the information set forth therein, have been prepared in conformity with
GAAP applied on a consistent basis and otherwise have been prepared in accordance with the
applicable financial statement requirements of Rule 3-05 or Rule 3-14 of Regulation S-X with
respect to real estate operations acquired or to be acquired. In addition, any pro forma financial
statements and the related notes thereto set forth in or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Prospectus present fairly the
information shown therein, have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have been properly compiled on the
basis described therein, and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and circumstances
referred to therein. All non-GAAP financial measures included in or incorporated by reference into
the Registration Statement, the Prospectus and the General Disclosure Package comply with the
requirements of Regulation G and Item 10 of Regulation S-K of the Securities Act Regulations to the
extent such rules are applicable to such financial statements. Other than the historical financial
statements and financial statement schedule relating thereto and the pro forma financial
statements, if any, included in or incorporated by reference into the Registration Statement, the
Prospectus and the General Disclosure Package, no other historical or pro forma financial
statements (or schedules) are required by the Act or the Securities Act Regulations to be included
therein or in any document required to be filed with the Commission under the Exchange Act or the
Exchange Act Regulations.
S. Independent Registered Public Accounting Firm. The accountants who certified the financial
statements and supporting schedules included in or incorporated by reference into the Registration
Statement and delivered the initial letter referred to in Section 5.A hereof, are, and
during the periods covered by such financial statements were, an independent registered public
accounting firm as required by the Act, the Securities Act Regulations, the Exchange Act, the
Exchange Act Regulations, and the Public Company Accounting Oversight Board (United States).
T. REIT Status. Commencing with the taxable year ending December 31, 2004, the Company has
been and is 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”).
U. Tax Returns and Matters. The Transaction 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 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
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against them, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that (i) would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect or (ii) as described in or contemplated by the Prospectus.
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 would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
V. No Other Offering Documents or Prospectuses. The Transaction Entities and each of the
Subsidiaries have not distributed, and prior to the later of the 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 other than the Registration
Statement, the Prospectus, the General Disclosure Package or any other materials, if any, permitted
by the Act (which were disclosed to the Representatives and their counsel).
W. 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,
individually or in the aggregate, a Material Adverse Effect.
(2) The assets of the Transactions Entities and the Subsidiaries do not constitute
“plan assets” of an ERISA regulated employee benefit plan.
(3) The Company is 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.
X. Property Matters.
(1) The Transaction Entities or the Subsidiaries have good and marketable title
(either in fee simple or pursuant to a leasehold interest) to all of the properties owned
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or leased by them (the “Properties”), in each case, free and clear of all Liens except such as (i)
are disclosed in the Prospectus; or (ii) would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. Any real property, improvements, equipment and
personal property held under lease by the Company or any Subsidiary are held under valid, existing
and enforceable leases which are in full force and effect, and none of the Company, Operating
Partnership nor any Subsidiary or, to any Transaction Entity’s knowledge, any other party, is in
default under any such lease, with such exceptions as are disclosed in the Prospectus or would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(2) All of the leases and subleases under which the Company, Operating Partnership or any
Subsidiary lease any portion of the Properties are in full force and effect; 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 Transaction Entity nor any tenant under any of the terms and
provisions of the leases described above; and none of the Company, Operating Partnership nor any
Subsidiary has received any notice of any claim asserted by anyone adverse to the rights of the
Company, Operating Partnership or Subsidiary under any of the leases or questioning or affecting
the rights of the tenant of the continued possession of the leased or subleased premises under any
such lease or sublease, in each case other than those that would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect or that have been, in the
reasonable judgment of the Company, adequately reserved for in the Company’s consolidated financial
statements. No tenant which has been specifically identified in the Prospectus under any of the
leases at the Properties has a right of first refusal or other right or option to purchase the
premises demised under such lease, other than those which are disclosed in the Prospectus or with
respect to properties the value of which are not material to the Transaction Entities and the
Subsidiaries as a whole;
(3) 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 would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;
(4) Each of the Properties complies with all applicable zoning laws, ordinances, regulations,
and deed restrictions or other covenants in all material respects and, if and to the extent there
is a failure to comply, such failure would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect;
(5) None of the Transaction Entities, nor any Subsidiary, 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, individually or in the aggregate, a
Material Adverse Effect;
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(6) Each of the Properties is free of material structural defects and all building
systems contained therein are in good working order in all material respects, subject to
ordinary wear and tear, except as would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or, in each instance, the Company maintains
adequate reserves to effect reasonably required repairs, maintenance and capital
expenditures; and
(7) 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 have, individually or in the aggregate, a Material Adverse Effect.
Y. No Participating Interests. The mortgages and deeds of trust encumbering the Properties and
assets described in the Prospectus are not convertible, and except as otherwise described in the
Prospectus, neither the Transaction Entities, any of the 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 the Subsidiaries.
Z. Insurance. The Operating Partnership and any Subsidiary that owns, or leases under ground
leases, real property has 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 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.
AA. Environmental Matters. Except as otherwise disclosed in the Prospectus or as would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
(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 in all material respects;
(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 on, to or from the Properties, except where such events
would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;
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(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 have, individually or in the aggregate, 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 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, 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 the Subsidiaries other than in compliance with applicable Environmental
Laws;
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(10) to the best 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 best knowledge of the Transaction Entities, no building or other
improvement located on the Properties contains any asbestos or asbestos-containing
materials that would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; (b) all asbestos or asbestos-containing materials are managed,
handled, treated, and removed in compliance with Environmental Law, except where such
noncompliance would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; 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. §§9601 et seq. (“CERCLA”); (ii) the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq., (“RCRA”); (iii)
the Emergency Planning and Community Right to Know Act (42 U.S.C. §§11001 et seq.); (iv) the Clean
Air Act (42 U.S.C. §§ 7401 et seq.); (v) the Clean Water Act (33 U.S.C. §§1251 et seq.); (vi) the
Toxic Substances Control Act (15 U.S.C. §§2601 et seq.); (vii) the Hazardous Materials
Transportation Act (49 U.S.C. §§ 5101 et seq.); (viii) the Safe Drinking Water Act (41 U.S.C.
§§300f et seq.); (ix) any state, county, municipal or local statues, laws or ordinances similar or
analogous to the federal statutes listed in parts (i) through (viii), inclusive, of this
subparagraph, (x) any amendments to the statutes, laws or ordinances listed in parts (i) through
(ix), inclusive 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) through (x), inclusive, 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.
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.
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BB. Independence of Environmental Consultants. None of the environmental consultants that
prepared the Phase I and II 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 the 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 the Subsidiaries (or any of their predecessor entities) as a promoter, selling agent,
voting trustee, director, officer or employee.
CC. Description of the Offered Securities, the Guarantees and the Indenture. The Offered
Securities, the Guarantees and the Indenture conform in all material respects to the respective
statements relating thereto contained in the Prospectus and General Disclosure Package.
DD. Labor Relations. With respect to employees of the Transaction Entities or any Subsidiary,
no labor dispute exists or, to the knowledge of the Transaction Entities, is imminent, that would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
EE. Intellectual Property Rights. The Transaction Entities and the 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
the Subsidiaries, would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
FF. No Proceedings. 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, individually or in the aggregate, a Material Adverse Effect, or would materially
and adversely affect the ability of the Transaction Entities to perform their obligations under
this Agreement; and no such actions, suits or proceedings are threatened or, to the Transaction
Entities’ knowledge, contemplated.
GG. No Material Adverse Change; No Material Transactions. Except as disclosed in the
Prospectus, the Registration Statement or the General Disclosure Package, since the respective
dates as of which information is given in the Prospectus, the Registration Statement and the
General Disclosure Package, (1) there has been no Material Adverse Effect, nor any development or
event involving a prospective Material Adverse Effect; (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; or (3) except for quarterly dividends on the Common
Stock and the Company’s 7.375% Series A Cumulative Redeemable Preferred Stock (the “Series A
Preferred Stock”) and related distributions on OP Units and Series A Units, respectively, that are
consistent with past practice, there has been no dividend or
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distribution of any kind declared, paid or made by the Company on any class of its capital stock or
by the Operating Partnership on any of its partnership interests.
HH. 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 (the “Investment Company Act”).
II. Adequate Disclosure of Contracts and Documents. There are no contracts or documents which
are required to be described in the General Disclosure Package, the Registration Statement or the
Prospectus or the documents incorporated by reference therein, or to be filed as exhibits thereto
which have not been so described and filed as required.
JJ. 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.
KK. 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.
LL. 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 any of the Company’s securities to facilitate the sale or resale of the Offered
Securities.
MM. 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.
NN. 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 either of the Transaction Entities of interests in assets or
real property that are required to be described in the Prospectus that are not already so
described.
OO. Internal Controls. The Company, the Operating Partnership and the
Subsidiaries have established and maintain “disclosure controls and procedures” (as such term is
defined in Rule 13a-15 and 15d-15 promulgated under the Exchange Act); such disclosure
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controls and procedures are designed to ensure that material information relating to the Company
and its Subsidiaries, is made known to the Company’s Chief Executive Officer and Chief Financial
Officer by others within those entities, and such disclosure controls and procedures are effective
to perform the functions for which they were established. The Company, the Operating Partnership
and the Subsidiaries have established and maintain internal control over financial reporting (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such internal control over
financial reporting is designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles, including providing reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s
assets that could have a material effect on the financial statements. The Company’s independent
registered public accounting firm and the audit committee of the Board of Directors have been
advised of: (i) any significant deficiencies and material weaknesses in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) any fraud, whether or not material, that involves management or
other employees who have a role in the Company’s internal controls. Since the date of the most
recent evaluation of such disclosure controls and procedures, there have been (I) no material
weakness in the Company’s internal control over financial reporting (whether or not remediated) and
(II) no significant changes in internal controls or in other factors that could significantly and
negatively affect internal controls.
PP. Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of
the Company, the Operating Partnership and the Subsidiaries or any of such entities’ directors or
officers, in their capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and 906 related to
certifications.
QQ. Pending Proceedings and Examinations. The Registration Statement is not the subject of a
pending proceeding or examination under Section 8(d) or 8(e) of the Act, and neither of the
Transaction Entities is the subject of a pending proceeding under Section 8A of the Act in
connection with the offering of the Offered Securities.
RR. OFAC. Neither the Company nor any of the Subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering of the Offered Securities contemplated hereby, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or
other person or entity for the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
SS. Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting
on behalf of the Company or any of its Subsidiaries is aware of or
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has taken any action, directly or indirectly, that has resulted or would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (collectively, the “FCPA”), except for such violations which would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA, and the Company and its Subsidiaries and, to the knowledge of the
Company, its other affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
TT. Money Laundering Laws. The operations of the Company and its Subsidiaries are and have
been conducted at all times in material compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder
and any related or similar applicable rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
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 and the Operating Partnership agree to issue and sell to the Underwriters, and
the Underwriters agree, severally and not jointly, to purchase from the Company and the Operating
Partnership, at the price set forth on Schedule II hereto, the aggregate principal amount of
Offered Securities set forth in Schedule I opposite the name of such Underwriter.
The Company and the Operating Partnership will deliver the Offered Securities to the
Representatives for the accounts of the Underwriters, including, at the option of the
Representatives, through the facilities of DTC, against payment of the purchase price in federal
(same day) funds by wire transfer to an account at a bank specified in writing to the
Representatives by the Company by 10:00 a.m., New York time, on March 30, 2011, or at such other
time not later than seven full business days thereafter as the Representatives and the Company
determine, such time being herein referred to as the “Closing Date.” For purposes of Rule 15c6-1
under the Exchange Act, the 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.
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.
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4. Certain Agreements of the Company and the Operating Partnership. The Company and
the Operating Partnership agree with the several Underwriters that:
A. Additional Filings with the Commission. The Company and the Operating Partnership will file
the Prospectus with the Commission in the manner and within the time frame required by Rule 424(b)
under the Act (without reliance on Rule 424(b)(8)) and will advise the Representatives promptly of
any such filing pursuant to Rule 424(b). The Company and the Operating Partnership will furnish
promptly to the Underwriters copies of the Prospectus and any amendments or supplements thereto in
such quantities and at such locations as the Underwriters may reasonably request for the purposes
contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the version created to be transmitted to
the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T.
B. Required Notices to and Consent of Representatives Relating to
Amendments or Supplements. The Company and the Operating Partnership will advise the
Representatives promptly of (i) any proposal to amend or supplement the Registration Statement, the
Prospectus or any preliminary prospectus and will not effect such amendment or supplement without
the Representatives’ consent, (ii) the effectiveness of any amendment or supplement to a
Registration Statement or the Prospectus, (iii) the receipt of comments from the Commission, (iv)
any request by the Commission for any amendment to the Registration Statement or the filing of a
new registration statement or any amendment or supplement to the Prospectus or any document
incorporated by reference or otherwise deemed to be a part thereof or for additional information,
(v) the institution by the Commission of any stop order proceedings in respect of the Registration
Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such purposes or of any
examination pursuant to Section 8(e) of the Act concerning the Registration Statement, or (vi) if
the Company or the Operating Partnership becomes the subject of a proceeding under Section 8A of
the Act in connection with the offering of the Offered Securities. The Company and the Operating
Partnership will use their best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued. The Company shall pay the required Commission
filing fees relating to the Offered Securities within the time required by Rule 456(b)(1)(i) of the
Securities Act Regulations without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating
the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a
post-effective amendment to the Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b)).
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, in the judgment of the Company, the Operating Partnership or the
reasonable opinion of the Representatives or counsel for the Underwriters, 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,
- 22 -
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 Representatives of such event and will promptly prepare
and furnish to the Underwriters copies of the proposed amendment or supplement before filing any
such amendment or supplement with the Commission and thereafter promptly file with the Commission
and furnish at the Company’s own expense to the Underwriters and to dealers, copies in such
quantities and at such locations as the Representatives may from time to time reasonably request of
an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with the Act and the Securities Act
Regulations. If at any time following issuance of an Issuer Free Writing Prospectus there occurred
or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement (or any
other registration statement relating to the Offered Securities) or the Statutory Prospectus or any
preliminary prospectus or included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances prevailing at that subsequent time, not misleading, the Company
will promptly notify the Representatives and will promptly amend or supplement, at its own expense,
such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set forth in
Section 5. The Company and the Operating Partnership have given the Representatives
notice of any filings made pursuant to the Exchange Act or the Exchange Act Regulations within 48
hours prior to the Applicable Time; the Company and the Operating Partnership will give the
Representatives notice of either of their intention to make any such filing from the Applicable
Time to the Closing Date and will furnish the Representatives and counsel for the Underwriters with
copies of any such documents a reasonable amount of time prior to such proposed filing and will not
file or use any such document to which the Representatives or counsel for the Underwriters shall
reasonably object.
D. Twelve-Month Earnings Statement. As soon as practicable, but not later than the
Availability Date (as hereinafter defined), each of the Company and the Operating Partnership will
make generally available to its securityholders an earnings statement covering a period of at least
twelve months beginning after the effective date (as determined pursuant to Rule 158(c) under the
Securities Act Regulations) of the 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
40th 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 75th day after the end of such fourth fiscal quarter.
E. DTC. The Company and the Operating Partnership will cooperate with the Underwriters and use
their best efforts to permit the Offered Securities to be eligible for clearance and settlement
through the facilities of DTC.
F. Copies of Documents. The Company will furnish to the Representatives copies of the
Registration Statement (one of which will be signed and will include all exhibits and
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documents incorporated or deemed to be incorporated by reference therein or otherwise deemed
to be a part thereof), 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 Representatives request. All such 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 under the Act.
G. Use of Proceeds. The Company and the Operating Partnership will use the net proceeds
received by the Operating Partnership from the sale of the Offered Securities in the manner
specified in the Prospectus under “Use of Proceeds.”
H. Annual Reports. During the period of five years hereafter, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, as soon as practicable after
the end of each fiscal year, to the extent not available without charge through the Company’s
website, a copy of its annual report to stockholders for such year and, shall furnish to the
Representatives, 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 and the Operating Partnership
filed with the Commission under the Exchange Act or mailed to securityholders, and from time to
time, such other information concerning the Company or the Operating Partnership as the
Representatives may reasonably request.
I. Limits on Future Registration Statements; Offers of Securities. During the period
commencing on the date hereof and ending at the Closing Date, neither the Company nor the Operating
Partnership will, without the prior written consent of the Representatives (which consent may be
withheld at the sole discretion of the Representatives), directly or indirectly issue, offer, sell,
contract to sell, hypothecate, pledge, grant or sell any option, right or warrant to purchase, or
establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange
Act, or otherwise dispose of, or contract to dispose of, or file a registration statement under the
Act or prospectus supplement with respect to any outstanding registration statement with the
Commission with respect to, any unsecured debt securities issued or guaranteed by any of the
Transaction Entities or any of their respective subsidiaries and having a maturity of more than one
year from the date of issue or any other securities convertible into or exercisable or exchangeable
for the Offered Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing.
J. Blue Sky Qualification. The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the distribution.
K. Notification of Certain Events. Prior to the Closing Date, each of the Company and the
Operating Partnership will notify the Underwriters in writing immediately if any event
- 24 -
occurs that renders any of the representations and warranties of the Company and the Operating
Partnership contained herein inaccurate or incomplete.
L. REIT Qualification. The Company will use its best efforts to maintain its qualification as
a REIT under the Code.
M. Compliance with Laws. During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act, the Company and the Operating Partnership will (1) comply with
all provisions of the Act and the Securities Act Regulations and the Exchange Act and Exchange Act
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 Exchange Act Regulations.
N. Trust Indenture Act Compliance. The Company and the Operating Partnership will comply with
the Trust Indenture Act so as to permit the completion of the distribution of the Offered
Securities as contemplated in this Agreement, the General Disclosure Package and the Prospectus.
O. 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 and the rules and regulations of the
Commission thereunder.
P. 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 designed 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.
Q. No Free Writing Prospectus. Except as contemplated in Section 4.C. above, each of the
Company and the Operating Partnership represents and agrees that, unless it obtains the prior
consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains
the prior consent of the Company and the Representatives, it has not made and will not make any
offer relating to the Offered Securities that would constitute an “issuer free writing prospectus,”
as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined
in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented
to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” Each of the Company and the Operating Partnership represents that it has treated or
agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule
433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping.
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5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Securities on the 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
the performance by the Company of its obligations hereunder and to the following additional
conditions precedent:
A. Accountant’s Letter. The Representatives shall have received a letter at the time of
execution of this Agreement, of KPMG LLP (“KPMG”) in the form approved by the
Representatives before the execution of this Agreement, with respect to the financial statements
and certain financial information set forth in or incorporated by reference in the Registration
Statement and Prospectus, which shall include the following statements:
(1) they are an independent registered public accounting firm within the meaning of
the Act and the Securities Act Regulations;
(2) in their opinion the financial statements examined by them and included in or
incorporated by reference into the Registration Statements comply as to form in all
material respects with the applicable requirements of the Act and the Securities Act
Regulations;
(3) 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 or incorporated by reference into the Registration
Statements and the Prospectus;
(4) on the basis of the review referred to in clause (3) above, a reading of the
latest available interim financial statements of the Company and the Operating Partnership,
inquiries of officials of the Company and the Operating Partnership 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 or incorporated by
reference into the Registration Statements and the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
Exchange Act and the Exchange Act Regulations or that any material modifications
should be made to such unaudited financial statements 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 (i) any change in the capital stock
or any increase in debt of the Company or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in total assets or
total equity, as compared with amounts shown on the latest balance sheets included
in or incorporated by reference into the Registration Statements and
- 26 -
Prospectus or (ii) any change in the preferred units and general partners’ units or
any increase in debt of the Operating Partnership or, at the date of the latest
available balance sheet read by such accountants, there was any decrease in total
assets or total capital, as compared with amounts shown on the latest balance
sheets included in or incorporated by reference into the Registration Statements
and Prospectus; or
(c) for the period from the closing date of the latest income statement
included in or incorporated by reference into the Registration Statements and
Prospectus to the closing date of the latest available income statement read by
such accountants, and for the period from the closing date of the latest income
statement included in or incorporated by reference into the Prospectus to a
subsequent specified date not more than three business days prior to this
Agreement, there were any decreases, as compared with the corresponding period of
the previous year, in total revenues, income from operations or net income of the
Company or the Operating Partnership.
except in all cases set forth in one of the above clauses for changes, increases or
decreases which the Registration Statements and Prospectus disclose have occurred or may
occur or which are described in such letter;
(5) they have read the unaudited pro forma financial statements, if any, included in
or incorporated by reference into the Registration Statements and inquired of certain
officials of the Company who have responsibility for financial and accounting matters and
proved the arithmetic accuracy of the application of the pro forma adjustments, and on the
basis of the procedures, nothing came to their attention that caused them to believe that
the pro forma financial statements included in or incorporated by reference into the
Registration Statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Securities Act Regulations or that
the pro forma adjustments have not been properly applied; and
(6) 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 subject to the
internal controls of the Company’s accounting system, 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, “Registration Statements” shall mean the Registration Statement,
including the prospectus included in the Registration Statements and any preliminary prospectus.
B. Registration Statement Effectiveness. The Registration Statement has become effective and
at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
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or, to the knowledge of the Company or the Operating Partnership, shall be contemplated by the
Commission. The Prospectus containing the Rule 430B Information shall have been filed with the
Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule
424(b)(8) (or a post-effective amendment providing such information shall have been filed and
become effective in accordance with the requirements of Rule 430B) in accordance with Section
4 of this Agreement. The Company and the Operating Partnership shall have paid the required
Commission filing fees relating to the Offered Securities within the time period required by Rule
456(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the Securities Act Regulations and, if applicable, shall
have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b).
C. Subsequent Events. Subsequent to the execution and delivery of this
Agreement, and since the respective dates as of which information is given in the Prospectus or the
General Disclosure Package, 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
Representatives, 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
Representatives, 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 state authorities;
(6) any major disruption of settlements of securities or clearance services in the
United States;
(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
Representatives, the effect of any such attack, outbreak, escalation, act, declaration,
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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; or
(8) any downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the direction of
the possible change in the rating accorded any securities of the Company or any of its
subsidiaries by any “nationally recognized statistical rating organization” as such term is
defined in Section 3(a)(62) of the Exchange Act.
D. Issuer’s Counsel’s Opinion. The Representatives shall have received an opinion, dated on
the Closing Date, of Xxxxxx & Xxxxxxx LLP, special counsel for the Company, to the effect that:
(1) Based solely on certificates from public officials, such counsel confirms that the
Company is qualified to do business in California;
(2) Based solely on certificates from public officials, such counsel confirms that the
Operating Partnership is qualified to do business in the following states: California,
Colorado, Delaware, Massachusetts, New Hampshire, New Jersey, New York, North Carolina,
Pennsylvania and Washington;
(3) Each of the Subsidiaries of the Company or the Operating Partnership listed on a
schedule to such counsel’s opinion (the “Material Subsidiaries”) is either (a) a limited
liability company duly organized under the Delaware Limited Liability Company Act (the
“DLLCA”) 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, or (b)
a limited partnership duly organized under the Delaware Revised Uniform Limited Partnership
Act (the “DRULPA”) with limited partnership power and authority to own its properties and
to conduct its business as described in the Registration Statement and the Prospectus.
Based solely on certificates from public officials, such counsel confirms that each
Material Subsidiary is validly existing and in good standing under the laws of the state of
its formation, and is qualified to do business in all states set forth on a schedule to
such counsel’s opinion. With the consent of the Representatives, based solely on a
certificate of an officer of the Company and the Operating Partnership as to factual
matters and a review of the limited liability company agreement or agreement of limited
partnership, as the case may be, of each Material Subsidiary, all of the partnership
interests or limited liability company interests of the Material Subsidiaries are owned of
record by the Company, the Operating Partnership, or a wholly owned subsidiary of the
Company or the Operating Partnership.
(4) With the consent of the Representatives, 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;
- 29 -
(5) The execution and delivery of the Underwriting Agreement and the Indenture by the
Transaction Entities, and the issuance and sale of the Offered Securities by the Operating
Partnership and the Guarantees by the Company to the Underwriters pursuant to the Underwriting
Agreement do not on the date hereof:
(a) conflict with, result in the breach of or a default under any of the agreements
filed or incorporated by reference as exhibits to the Registration Statement;
(b) violate any federal, New York or California statute, rule or regulation
applicable to any such Transaction Entities;
(c) violate the certificate of formation, certificate of limited
partnership, limited liability company agreement or agreement of limited
partnership, as the case may be, of any Material Subsidiary; or
(d) require any consents, approvals, or authorizations to be obtained by any such
Transaction Entities or any Material Subsidiary, or any registrations, declarations or
filings to be made by such Transaction Entities, in each case, with any governmental
authority under any federal or California statute, rule, or regulation applicable to the
Transaction Entities that have not been obtained or made;
(6) The Registration Statement has become effective under the Act and the Form 10 has been
declared effective under the Exchange Act. With the consent of the Representatives, based solely on
telephonic confirmation by a member of the Staff of the Commission on the date of such opinion,
such counsel confirms that (i) no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act, (ii) no stop order suspending the effectiveness of the
Form 10 has been issued under the Exchange Act, and (iii) no proceedings therefor have been
initiated by the Commission. The preliminary prospectus has been filed in accordance with Rule
424(b) under the Act, the Prospectus has been filed in accordance with Rule 424(b) and 430B under
the Act (without reference to Rule 424(b)(8)), and the Issuer Free Writing Prospectus has been
filed in accordance with Rule 433(d) under the Act;
(7) 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 the Incorporated Documents
or to be filed as exhibits to the Registration Statement that are not described or filed or
incorporated by reference as exhibits thereto; it being understood, however, that such counsel
expresses no view with respect to Regulation S-T or the financial statements, schedules or other
financial data included in, incorporated by reference in, or omitted from, the Registration
Statement, the Prospectus or the Incorporated Documents;
(8) 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
- 30 -
agreement, and docket searches in the jurisdictions listed on a schedule to such counsel’s
opinion, there are no actions, suits, proceedings or investigations pending against the
Transaction Entities 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 or incorporated by reference 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;
(9) The Registration Statement, including without limitation the 430B Information, as
of its latest effective date and as of the date of the Prospectus, and the Prospectus, as
of its date, each appeared on its face to be appropriately responsive in all material
respects to the applicable form requirements for registration statements on Form S-3 under
the Act and the Securities Act Regulations; it being understood, however, that such counsel
need express no view with respect to Regulation S-T or the financial statements, schedules
or other financial data, included in, incorporated by reference in, or omitted from, the
Registration Statement or Prospectus. For purposes of this paragraph, such counsel may
assume that the statements made in the Registration Statement and Prospectus are correct
and complete;
(10) Each of the Incorporated Documents, as of its respective filing date, or, in the
case of the Form 10, the effective date, appeared on its face to be appropriately
responsive in all material respects to the applicable form requirements for registration
statements on Form 10, reports on Form 8-A, Form 10-K, Form 10-Q and Form 8-K and proxy
statements under Regulation 14A, as the case may be, under the Exchange Act and the
Exchange Act Regulations; it being understood, however, that such counsel expresses no
opinion with respect to Regulation S-T or the financial statements, schedules or other
financial data included in, incorporated by reference in, or omitted from, the Incorporated
Documents. For purposes of this paragraph, such counsel may assume that the statements made
in the Incorporated Documents are correct and complete;
(11) To the best knowledge of such counsel, no Transaction Entity is a party to any
agreement that would require the inclusion in the Registration Statement of any securities
of the Company owned by any person or entity other than the Company;
(12) The Indenture is the legally valid and binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms;
(13) The Indenture, including the Guarantee contained therein, is the legally valid and
binding agreement of the Company, enforceable against the Company in accordance with its terms;
(14) When executed, issued and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the
Offered Securities will be the legally valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their terms;
- 31 -
(15) The statements in the General Disclosure Package and the Prospectus under the caption
“Description of Notes” and “Description of Debt Securities and Related Guarantees,” insofar as they
purport to describe or summarize certain provisions of the Offered Securities, are accurate
descriptions or summaries in all material respects; and
(16) The Indenture has been duly qualified under the Trust Indenture Act.
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 states of California and New York, 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 its professional engagement was not to establish or confirm
factual matters or financial or quantitative information. Therefore, such counsel is not
passing upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in, or incorporated by reference in, the Registration
Statement, the Prospectus and the General Disclosure Package (except to the extent
expressly set forth in the numbered paragraph 7 of such counsel’s opinion letter to the
Representatives of even date), and has not made an independent check or verification
thereof (except as aforesaid). However, in the course of acting as special counsel to the
Operating Partnership and the Company in connection with the preparation by the Company of
the Registration Statement, the Prospectus and the General Disclosure Package, such counsel
reviewed the Registration Statement, the Prospectus, the General Disclosure Package and the
Incorporated Documents, and participated in conferences and telephone conversations with
officers and other representatives of the Operating Partnership and the Company, the
independent registered public accounting firm for the Company, the representatives of the
Underwriters, and counsel to the Underwriters, during which conferences and conversations
the contents of the Registration Statement, the Prospectus, the General Disclosure Package
(and portions of certain of the Incorporated Documents) and related matters were discussed.
Such counsel 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 Operating Partnership and the Company and others as to the existence
and consequence of certain factual and other matters.
Based on such counsel’s participation, review and reliance as described above, such
counsel advises the Representatives that no facts came to such counsel’s attention that
caused such counsel to believe that:
| • | the Registration Statement, at the date of the Prospectus, including the 430B Information (together with the Incorporated Documents at that time), 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; |
- 32 -
| • | the General Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or | ||
| • | the Prospectus, as of its date or as of the date of such counsel’s opinion (together with the Incorporated Documents at those dates), 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 such counsel expresses no belief with respect to the financial
statements, schedules, or other financial data included or incorporated by reference
in, or omitted from, the Registration Statement, the Prospectus, the General Disclosure
Package or the Incorporated Documents.
E. Tax Opinion. The Representatives shall have received an opinion, dated as of the Closing
Date, of Xxxxxx & Xxxxxxx LLP, special tax counsel for the Company, to the effect that:
(1) Commencing with its taxable year ending December 31, 2004, the Company has been
organized and has operated in conformity with the requirements for qualification as a REIT
under the Code, and its proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code; and
(2) The statements in the Base Prospectus set forth under the caption “Material United
States Federal Income Tax Considerations”, as supplemented by the statements set forth
under the caption “Tax Rates” in the Company’s Current Report on Form 8-K filed on February
8, 2011, insofar as they purport to summarize certain provisions of the statutes or
regulations referred to therein, are accurate summaries in all material respects.
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”), Maryland counsel of the Company,
dated as of the Closing Date, with respect to certain matters of Maryland law.
X. Xxxxxxx Opinion. The Representatives shall have received an opinion, dated as of the
Closing Date, of Venable, 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 State Department of
Assessments and Taxation of Maryland (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 “Our Company,” and to enter
- 33 -
into and perform its obligations under this Agreement and the other 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 “Our Company,” and to enter
into and perform its obligations under this Agreement and the other Transaction Agreements.
(3) BioMed Realty Holdings, Inc. (“BioMed Holdings”) 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.
(4) The Operating Partnership has the limited partnership power to authorize, issue, and sell
the Offered Securities and the Company has the corporate power to make the Guarantees as
contemplated by this Agreement and the Transaction Agreements. The issuance of the Offered
Securities has been duly authorized by the Company in its capacity as sole general partner of the
Operating Partnership and the Operating Partnership. The issuance of the Offered Securities by the
Operating Partnership is not subject to preemptive or other similar rights arising under the
Maryland Revised Uniform Limited Partnership Act (the “MRULPA”) or the Operating Partnership
Agreement.
(5) The execution and delivery of this Agreement and the other Transaction Agreements by each
of the Transaction Entities that is a party hereto or thereto and the performance by each of the
Transaction Entities of the transactions contemplated hereby and thereby, including the sale and
issuance of the Offered Securities by the Operating Partnership and the issuance of the Guarantees
by the Company 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 regulation of any Maryland governmental
authority applicable to the Transaction Entities or (b) the Charter, the Bylaws or the Operating
Partnership Agreement.
(6) The execution and delivery of this Agreement and the other Transaction Agreements have
been duly authorized by all necessary corporate or limited partnership action, as applicable, of
each Transaction Entity that is a party hereto or thereto. This Agreement and the other
Transaction Agreements have been executed and, so far as is known to such counsel, delivered by
each Transaction Entity that is a party hereto or thereto.
(7) 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
- 34 -
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 included in the (a) Company and the Operating Partnership’s most
recent Annual Report on Form 10-K under the caption “Risk Factors—Risks Related to Our
Organizational Structure,” (b) and Prospectus under the captions “Description of Preferred
Stock,” “Description of Common Stock,” “Description of Units,” “Restrictions on Ownership
and Transfer,” “Certain Provisions of Maryland Law and of the Company’s Charter and Bylaws”
and “Description of the Partnership Agreement of BioMed Realty, L.P.,” as of the date of
the Prospectus Supplement filed in connection with the sale of the Offered Securities,
insofar as such information relates to provisions of Maryland law or the Company’s or the
Operating Partnership’s organizational documents, is accurate in all material respects.
(9) The execution and delivery of this Agreement and the other Transaction Agreements
by each of the Transaction Entities that is a party hereto or thereto and the performance
by each of the Transaction Entities of the transactions contemplated hereby and thereby,
including the sale and issuance of the Offered Securities by the Operating Partnership and
the issuance of the Guarantees by the Company 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. At the Closing Date, the Representatives shall have
received from DLA Piper LLP (US), counsel for the Underwriters, such opinion or opinions, dated as
of the Closing Date, with respect to such matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, DLA Piper LLP (US) 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 Representatives a
certificate, dated as of the Closing Date, of its, or its general partner’s or managing member’s
chief executive officer(s) and chief financial officer in which such officers shall state that, to
the best of their knowledge after reasonable investigation:
(1) the representations and warranties of the Transaction Entities set forth in this
Agreement are true and correct;
- 35 -
(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 the 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) since the respective dates as of which information is given in the Prospectus or
the General Disclosure Package, there has been no Material Adverse Effect, whether or not
arising in the ordinary course.
I. Accountant’s Letter. The Representatives shall have received a letter, dated as of the date
of this Agreement and as of the 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 the date of this Agreement or the Closing Date, as applicable, for the purposes
of this subsection.
J. Indenture. At or prior to the Closing Date, each of the Company, the Operating Partnership
and the Trustee shall have executed and delivered the Indenture.
K. FINRA. The FINRA shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements with respect to the offering and sale of
the Offered Securities.
L. 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 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.
M. 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.
N. Copies of Documents; Waiver of Compliance. The Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents as the
Representatives may reasonably request. The Representatives may in their sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters
hereunder.
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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, each person, if any,
who controls such Underwriter within the meaning of the Act or the Exchange Act, and each affiliate
of any Underwriter within the meaning of Rule 405 under the Securities 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, any related preliminary
prospectus, or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, and 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 Representatives 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.
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 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, 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, any related preliminary prospectus, or any Issuer Free
Writing Prospectus, or any amendment or supplement thereto, 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 Representatives 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.
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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.B 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 under
Section 6.A or 6.B above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses. 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 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.B 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.B 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
- 38 -
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.
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 the Closing Date and the total principal amount of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities that the Underwriters are obligated
to purchase on the Closing Date, the Representatives 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 the 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 the Closing Date. If
any Underwriter or
Underwriters so default and the total principal amount of Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of Offered Securities that
the Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the
Representatives 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 6 above. As
used in this Agreement, the term “Underwriter” includes any
- 39 -
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 Offered Securities 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 and any Permitted Free Writing 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, the Transaction Agreements 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 Offered Securities; (3) all expenses in connection with the qualification
of the Offered Securities 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 FINRA
of the fairness of the terms of the sale of the Offered Securities; (5) the cost of issuing and
delivering the Offered Securities, including printing costs; (6) the costs and charges of the
Trustee, any other trustee, transfer agent or registrar; (7) the cost of the tax stamps, if any, in
connection with the issuance and delivery of the Offered Securities to the respective Underwriters;
(8) all other fees, costs and expenses referred to in Item 31 of the Registration Statement; and
(9) the transportation, lodging, graphics and other expenses incidental to the Company’s
preparation for and participation in any “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 their 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
- 40 -
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 Representatives, c/x
Xxxxx Fargo Securities, LLC, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Transaction Management, Facsimile 000-000-0000; KeyBanc Capital Markets Inc., 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Fixed Income Syndicate, Facsimile 216-689-0976, and Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking
Division, Facsimile: 000-000-0000, with a copy to DLA Piper LLP (US), 0000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxxxx X. Xxxx, Esq. or, if sent to the
Transaction Entities, will be mailed, delivered or telegraphed and confirmed to the Company, 00000
Xxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000, Attention: General Counsel with a copy to Xxxxxx &
Xxxxxxx LLP, 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, 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. No Fiduciary Relationship. Each of the Transaction Entities acknowledges that (i) it is
contracting with the Underwriters on an arm’s length basis to provide the services described
herein, (ii) in connection with the offering contemplated hereby and the process leading to such
transaction, the Underwriters are and have been acting solely as a principal and are not acting in
a fiduciary capacity with respect to the Company, the
Operating Partnership, or their stockholders, partners, creditors or employees, (iii) the
Underwriters have not and are not assuming or creating any advisory or fiduciary responsibility in
favor of the Company or the Operating Partnership with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or the Operating Partnership on other matters) and the Underwriters
have not and are not assuming any duties or obligations in connection with the offering of the
Offered Securities, other than those expressly set forth in this Agreement, and (iv) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and each of the Company and the Operating Partnership has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
13. Representation of Underwriters. The Representatives will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action under this
Agreement taken by the Representatives will be binding upon all the Underwriters.
14. 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.
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15. Applicable Law and Venue. This Agreement shall be governed by, and construed in accordance
with, the laws of the state of New York, without regard to principles of conflict of laws.
Each of the Company and the Operating Partnership hereby submits to the non-exclusive
jurisdiction of the federal and state courts in the Borough of Manhattan in the City of New York in
any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
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If the foregoing is in accordance with the Representatives’ 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, the Operating Partnership and the several
Underwriters in accordance with its terms.
| Very truly yours, | ||||||
| BIOMED REALTY, L.P. | ||||||
| By: BioMed Realty Trust, Inc., its general partner | ||||||
| By: | /s/ Xxxx Xxxxxxx
|
|||||
| Title: President and Chief Operating Officer | ||||||
| BIOMED REALTY TRUST, INC. | ||||||
| By: | /s/ Xxxx Xxxxxxx
|
|||||
| Title: President and Chief Operating Officer | ||||||
[Signature Page to BioMed Realty, L.P. and BioMed Realty Trust, Inc. Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above
written.
| XXXXX FARGO SECURITIES, LLC | ||||
By:
|
/s/ Xxxxxxx Xxxxxx
|
|||
| Title: Director | ||||
| KEYBANC CAPITAL MARKETS INC. | ||||
By:
|
/s/ Xxxx X. Xxxxxxx
|
|||
| Title: Managing Director | ||||
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By: |
/s/ Yurij Slyz | |||
| Title: Executive Director | ||||
Acting on behalf of itself and as the Representatives of the several Underwriters.
[Signature Page to BioMed Realty, L.P. and BioMed Realty Trust, Inc. Underwriting Agreement]
Schedule I
Underwriters
| Principal Amount of | ||||
| Name of Underwriter | Securities | |||
Xxxxx Fargo Securities, LLC |
$ | 104,000,000 | ||
KeyBanc Capital Markets Inc. |
$ | 74,000,000 | ||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 74,000,000 | ||
Credit Suisse Securities (USA) LLC |
$ | 29,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 29,000,000 | ||
Xxxxxxx Xxxxx & Associates, Inc. |
$ | 29,000,000 | ||
UBS Securities LLC |
$ | 29,000,000 | ||
RBS Securities Inc. |
$ | 16,000,000 | ||
U.S. Bancorp Investments, Inc. |
$ | 16,000,000 | ||
Total |
$ | 400,000,000 | ||
Schedule II
The purchase price per $1,000 principal amount to be paid by the Underwriters for the Offered
Securities shall be 98.7650% of the principal amount thereof, plus accrued interest, if any.
Schedule III
Issuer General Use Free Writing Prospectuses included in the General Disclosure Package:
1. Final Term Sheet, attached as Annex A to this Schedule III.
Annex A to Schedule III
BioMed Realty, L.P.
$400,000,000 3.85% Senior Notes due 2016
fully and unconditionally guaranteed by
BioMed Realty Trust, Inc.
$400,000,000 3.85% Senior Notes due 2016
fully and unconditionally guaranteed by
BioMed Realty Trust, Inc.
Issuer: |
BioMed Realty, L.P. | |
Guarantor: |
BioMed Realty Trust, Inc. | |
Ratings: (Xxxxx’x / S&P)* |
Baa3 / BBB- | |
Security Type: |
Senior Unsecured Notes | |
Principal Amount: |
$400,000,000 | |
Pricing Date: |
Xxxxx 00, 0000 | |
Xxxxxxxxxx Date: |
March 30, 2011 (T+5) | |
Maturity Date: |
April 15, 2016 | |
Interest Payment Dates: |
April 15 and October 15, beginning October 15, 2011 | |
Benchmark: |
2.125% due February 29, 2016 | |
Benchmark Price / Yield: |
100-12 3/4 / 2.04% | |
Spread to Benchmark: |
+ 195 bps | |
Yield to Maturity: |
3.99% | |
Coupon: |
3.85% | |
Public Offering Price: |
99.365% | |
Redemption Provisions: |
At any time before 30 days prior to maturity at the Adjusted Treasury Rate plus 30 bps | |
| If the notes are redeemed on or after 30 days prior to the maturity date, the redemption price will be 100% of the principal amount of the notes being redeemed. | ||
CUSIP / ISIN: |
09064A AF8 / US09064AAF84 | |
Joint Book-Running Managers: |
Xxxxx Fargo Securities, LLC | |
| KeyBanc Capital Markets Inc. | ||
| Xxxxxx Xxxxxxx & Co. Incorporated |
Co-Managers:
|
Credit Suisse Securities (USA) LLC | |
| Deutsche Bank Securities Inc. | ||
| Xxxxxxx Xxxxx & Associates, Inc. | ||
| UBS Securities LLC | ||
| RBS Securities Inc. | ||
| U.S. Bancorp Investments, Inc. |
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
The issuer has filed a registration statement (including a preliminary prospectus supplement and a
prospectus) with the Securities and Exchange Commission (SEC) for the offering to which this
communication relates. Before you invest, you should read the preliminary prospectus supplement for
this offering, the issuer’s prospectus in that registration statement and any other documents the
issuer has filed with the SEC for more complete information about the issuer and this offering. You
may get these documents for free by searching the SEC online data base (XXXXX) on the SEC web site
at xxxx://xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus supplement and prospectus if you request it by
calling Xxxxx Fargo Securities, LLC toll-free at 0-000-000-0000; KeyBanc Capital Markets Inc. at
0-000-000-0000; or Xxxxxx Xxxxxxx & Co. Incorporated toll-free at 1-866-718-1649.
Schedule IV
Subsidiaries
| Jurisdiction of | ||
| Formation/ | ||
| Name | Incorporation | |
BioMed Realty, L.P.
|
Maryland | |
BioMed Realty Holdings, Inc.
|
Maryland | |
BioMed Realty LLC
|
Delaware | |
BioMed Realty Development LLC
|
Delaware | |
BioMed Ventures LLC
|
Delaware | |
BMR-217th Place LLC
|
Delaware | |
BMR-270 Albany Street LLC
|
Delaware | |
BMR-34790 Ardentech Court LLC
|
Delaware | |
XXX-00000 Xxxxxxxxx Xxxxxxxxx XXX
|
Xxxxxxxx | |
00000 Ardenwood Venture, LLC
|
Delaware | |
BMR-Ardsley Park LLC
|
Delaware | |
XXX-0000 Xxxxxx Xxxxxx LLC
|
California | |
BMR-Bayshore Boulevard LLC
|
Delaware | |
XXX-0000 Xxxxxxx Xxxxxx LLC
|
Delaware | |
Guilford Real Estate Trust 1998-1
|
Utah | |
BMR-Belward Campus Drive LSM LLC
|
Maryland | |
BMR-9920 Belward Campus Q LLC
|
Xxxxx Xxxxxx | |
XXX-00000 Xxxxxxxx Xxxxxx Xxxxx LLC
|
Delaware | |
BMR-Blackfan Circle LLC
|
Delaware | |
BMR-Bridgeview Technology Park LLC
|
Delaware | |
BMR-Bridgeview Technology Park II LLC
|
Delaware | |
BMR-Bridgeview Technology Park III LLC
|
Delaware | |
XXX-0000 Xxxxxx Xxxx Xxxxxx LLC
|
Delaware | |
XXX-00 Xxxxxxx Xxxxxx LLC
|
Delaware | |
BMR-134 Xxxxxxxx Avenue LLC
|
Delaware | |
XXX-0000 Xxxxxxxxx Xxxxxx LLC
|
Delaware | |
BMR-350 E Xxxxxxx F LLC
|
Delaware | |
BMR-650 E Xxxxxxx B LLC
|
Delaware | |
BMR-475 Eccles Avenue LLC
|
Delaware | |
XXX-0000 Xxxxxxxxxx Xxxx LLC
|
Delaware | |
BMR-201 Xxxxxxx Avenue LLC
|
Delaware | |
BMR-21 Erie Street LLC
|
Delaware | |
BMR-40 Erie Street LLC
|
Delaware | |
BMR-Executive Drive LLC
|
Delaware | |
BMR-4570 Executive Drive LLC
|
Delaware | |
BMR-500 Fairview Avenue LLC
|
Delaware |
- 50 -
| Jurisdiction of | ||
| Formation/ | ||
| Name | Incorporation | |
BMR-530 Fairview Avenue LLC
|
Delaware | |
XXX-0000 Xxxxxxx Xxxxxx LLC
|
Delaware | |
BMR-Forbes Boulevard LLC
|
Delaware | |
BMR-Fresh Pond Research Park LLC
|
Delaware | |
BMR-700 Gateway LLC
|
Delaware | |
BMR-750, 800, 850 Gateway LLC
|
Delaware | |
BMR-900 Gateway LLC
|
Delaware | |
BMR-1000 Gateway LLC
|
Delaware | |
BMR-Gateway/Oyster LLC
|
Delaware | |
BMR-Gateway Boulevard LLC
|
Delaware | |
BMR-Gazelle Court LLC
|
Delaware | |
BMR-350 Xxxxxx Xxxxxxxxx Boulevard LLC
|
Delaware | |
BMR-7 Graphics Drive LLC
|
Delaware | |
BMR-JV I Holdings LLC
|
Delaware | |
BMR-XX XX Holdings LLC
|
Delaware | |
BMR-201 Industrial Road LLC
|
Delaware | |
BMR-Xxxx Xxxxxxx Court LLC
|
Delaware | |
BMR-3525 Xxxx Xxxxxxx Court LLC
|
Delaware | |
BMR-6500 Kaiser Drive LLC
|
Delaware | |
BMR-500 Xxxxxxx Street LLC
|
Delaware | |
BMR-Xxxxxxx Development LLC
|
Delaware | |
BMR-Xxxxxxx Holdings LLC
|
Delaware | |
BMR-145 King of Prussia Road GP LLC
|
Delaware | |
BMR-145 King of Prussia Road LP
|
Delaware | |
BMR-Landmark at Eastview LLC
|
Delaware | |
BMR-7 Lucent Drive LLC
|
Delaware | |
BMR-10165 XxXxxxxx Court GP LLC
|
California | |
00000 XxXxxxxx Xxxxx, X.X.
|
Xxxxxxxxxx | |
BMR-Medical Center Drive LLC
|
Delaware | |
XXX-0000 Xxxxx Xxxxx Xxxxxxx XXX
|
Xxxxxxxx | |
XXX-0000-0000 Xxxxx Xxxxx Drive LLC
|
Delaware | |
BMR-6828 Xxxxx Xxxxx Drive LLC
|
Delaware | |
BMR-One Research Way LLC
|
Delaware | |
BMR-180 Oyster Point LLC
|
Delaware | |
BMR-200 Oyster Point LLC
|
Delaware | |
BMR-Pacific Center Boulevard LLC
|
Delaware | |
XXX-0000 Xxxxxxxxx Xxxxxxx LLC
|
Delaware | |
BMR-Patriot LLC
|
Delaware | |
BMR-PR II LLC
|
Delaware | |
BMR-PR II TRS LLC
|
Delaware | |
BMR-335-395 Phoenixville Pike LLC
|
Delaware | |
BMR-10835 Road to the Cure LLC
|
Delaware | |
BMR-Xxxxxx Street LLC
|
Delaware | |
XXX-00000 Xxxxxxx Xxxxxx Xxxxx LLC
|
Delaware |
- 51 -
| Jurisdiction of | ||
| Formation/ | ||
| Name | Incorporation | |
BMR-10255 Science Center Drive LLC
|
Delaware | |
BMR-Shady Grove Road HQ LLC
|
Maryland | |
BMR-Shady Grove Holdings LLC
|
Delaware | |
BMR-Shady Grove B LLC
|
Delaware | |
BMR-Shady Grove D LLC
|
Delaware | |
BMR-200 Xxxxxx Street LLC
|
Delaware | |
BMR-Sorrento Plaza LLC
|
Delaware | |
BMR-Sorrento Valley LLC
|
Delaware | |
BMR-11388 Sorrento Valley Road LLC
|
Delaware | |
BMR-Sorrento West LLC
|
Delaware | |
BMR-Spring Mill Drive GP LLC
|
Delaware | |
BMR-Spring Mill Drive, L.P.
|
Delaware | |
BMR-Torreyana LLC
|
Delaware | |
XXX-0000 Xxxxx Xxxxxx Xxxxx LLC
|
Delaware | |
XXX-0000 Xxxxx Xxxxxx Xxxxx LLC
|
Delaware | |
BMR-Trade Centre Avenue LLC
|
Delaware | |
XXX-0000 Xxxxxxxxx Xxxxxx LLC
|
Maryland | |
BMR-900 Uniqema Boulevard LLC
|
Delaware | |
BMR-1000 Uniqema Boulevard LLC
|
Delaware | |
BMR-325 Vassar Street LLC
|
Delaware | |
BMR-Xxxxxx LLC
|
Delaware | |
XXX-0000 Xxxxxx Xxxxxx LLC
|
Delaware | |
BMR-675 Xxxx Xxxxxxx Street LLC
|
Delaware | |
BMR-West Xxxxxxx Mill LLC
|
Delaware | |
BMR-50 West Xxxxxxx Mill LLC
|
Delaware | |
BMR-Weston LLC
|
Delaware | |
BMV Direct LLC
|
Delaware |
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