6,950,000 Shares of Common Stock (Par Value $0.01 Per Share) BioMed Realty Trust, Inc. (a Maryland Corporation) Underwriting Agreement
Exhibit 1.1
Execution Copy
6,950,000 Shares of Common Stock
(Par Value $0.01 Per Share)
(Par Value $0.01 Per Share)
BioMed Realty Trust, Inc.
(a Maryland Corporation)
(a Maryland Corporation)
August 16, 2006
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representative of the Several Underwriters listed on Schedule I hereto
c/o Raymond Xxxxx &Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
As Representative of the Several Underwriters listed on Schedule I hereto
c/o Raymond Xxxxx &Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
BioMed Realty Trust, Inc., a Maryland corporation (the “Company”), and BioMed Realty, L.P., a
Maryland limited partnership (the “Operating Partnership” and together with the Company, the
“Transaction Entities”), each confirms its agreement with Xxxxxxx Xxxxx & Associates, Inc.
(“Xxxxxxx Xxxxx”) and each of the other underwriters named in Schedule I hereto (the
“Underwriters”) for whom Xxxxxxx Xxxxx is acting as representative (the “Representative”) with
respect to the issuance and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of 6,950,000 shares (the “Firm Securities”) of the Company’s common
stock, par value $0.01 per share (the “Common Stock”), and with respect to the grant by the Company
to the Underwriters, acting severally and not jointly, of an option to purchase an aggregate of not
more than 1,042,500 additional shares of Common Stock (the “Optional Securities”), subject to the
terms and conditions set forth below. The Firm Securities and the Optional Securities are herein
collectively called the “Offered Securities.” This agreement by and among the Company, the
Operating Partnership and the Underwriters shall be referred to as this “Agreement.”
The Company will contribute the net proceeds from each sale of the Offered Securities to the
Operating Partnership and, in exchange therefor, at the Closing Date (as defined herein) of each
such sale, the Operating Partnership will issue to the Company units of limited partnership
interest in the Operating Partnership (“OP Units”).
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-129027) covering the registration of the Offered
Securities under the Securities Act of 1933, as amended (the “Act”). Such registration statement
has been declared effective under the Act and the rules and regulations
thereunder (the “Securities Act Regulations”) by the Commission. The Company has prepared and
filed such amendments thereto, if any, and such amended preliminary prospectuses, if any, as may
have been required to the date hereof. Promptly after execution and delivery of this Agreement,
the Company will prepare and file a prospectus in accordance with the provisions of paragraph (b)
of Rule 424 (“Rule 424(b)”) of the Securities Act Regulations. Any information included in such
prospectus 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 of
the Act (“Rule 430B”) is referred to as “Rule 430B Information.”
Each prospectus used in connection with the offering of Offered Securities that omitted Rule
430B Information is herein called a “preliminary prospectus.” Such registration statement, at any
given time, including the 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.” Any registration statement filed pursuant to Rule 462(b) of the Securities Act
Regulations is hereinafter called the “Rule 462(b) Registration Statement,” and after such filing
the term “Registration Statement” shall include the 462(b) Registration Statement. The final
prospectus 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,
and any preliminary prospectuses that form a part thereof, 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 “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.
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 or the Prospectus (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.
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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, the Applicable Time referred to in Section 1.A hereof, and as
of each respective Closing Date referred to in Section 2 hereof, that:
A. Registration Statement Effective; Conform to Act; No Misleading Statements; Conformity with
XXXXX filings.
(1) The Company and the transactions contemplated by this Agreement meet the
requirements for use of Form S-3 under the Act. Each of the Registration Statement, any
462(b) Registration Statement and any post-effective amendment thereto has become effective
under the Act.
(2) At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments 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 each relevant Closing Date,
the Registration Statement, any Rule 462(b) Registration Statement and any amendments or
supplements thereto complied and will comply, in all material respects with the requirements
of the Act and the Securities Act Regulations 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 each relevant 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 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. At the earliest time after the filing of the
Registration Statement that the Company 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, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405 of the Securities Act Regulations;
(3) As of the Applicable Time (as defined below), neither (x) the Issuer General Use
Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time,
the Statutory Prospectus (as defined below) and the information included on Schedule
IV hereto, all considered together (collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus, 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
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to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 8:45 a.m. (Eastern time) on August 16, 2006 or such other time as
agreed by the Company and the Representative.
“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, as evidenced by its being specified in
Schedule V hereto.
“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 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 any preliminary or other prospectus deemed to be a
part thereof.
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 Representative 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 by any Underwriter through the Representative 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 a Registration Statement or
any part thereof has been issued and no proceeding for that purpose has been instituted or, to the
knowledge of either of the Transaction Entities, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued, and no proceeding for that purpose has been instituted or, to the
knowledge of either of the Transaction Entities, threatened by the Commission or by the state
securities authority of any jurisdiction.
C. Incorporated Documents. Each document incorporated or deemed to be incorporated by
reference in the Prospectus or the Registration Statement (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 each 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.
D. Company Formation; Good Standing; Qualification. The Company has been duly formed and is
validly existing as a corporation in good standing under the laws of the state of Maryland, with
power and authority (corporate and other) to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations under this Agreement and
as general partner of the Operating Partnership to cause the Operating Partnership to enter into
and perform the Operating Partnership’s obligations under this Agreement, and 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 jurisdiction in which its
ownership or lease of property or the conduct of its business requires such qualification, except
where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect,
and has all power and authority necessary to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations under this Agreement.
The Company is the sole general partner of the Operating Partnership and holds the number and/or
percentage of OP Units as disclosed 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”).
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The Second 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 the Prospectus; provided, that to the extent any portion of the
over-allotment option described in Section 2 hereof is exercised at the First Closing Date,
the percentage interest of the Company and of such limited partners in the Operating Partnership
will be adjusted accordingly.
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 II hereto (each, a “Subsidiary” and together the “Subsidiaries”), has been duly
formed and is validly existing as a corporation, limited partnership or limited liability company,
as the case may be, in good standing under the laws of the jurisdiction of its organization, with
power and authority (corporate and other) to own its assets and conduct its business as described
in the Prospectus and to enter into and to perform its obligations under this Agreement; and 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; 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 Prospectus
in the column entitled “Historical Consolidated” under the caption “Capitalization.” None of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company. Except as disclosed in the Prospectus:
(i) except for shares of Common Stock reserved for issuance (A) upon exchange or redemption of the
OP Units, (B) in connection with the BioMed Realty Trust, Inc. and BioMed Realty, L.P. 2004
Incentive Award Plan (the “Equity Incentive Plan”) or (C) pursuant to the exercise of the warrant
dated as of August 11, 2004 granted to Xxxxxxx Xxxxx (the “Xxxxxxx Xxxxx Warrant”), no shares of
Common Stock are reserved for any purpose; (ii) except for the OP Units and the Xxxxxxx Xxxxx
Warrant, there are no outstanding securities convertible into or exchangeable for any shares of
Common Stock; and (iii) except for the Xxxxxxx Xxxxx Warrant and certain existing joint venture
agreements, 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.
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H. Authorization of Issuance of Offered Securities; Conformity with Applicable Laws. The
Offered Securities and all other outstanding shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this Agreement on each Closing Date,
such Offered Securities will have been, validly issued, fully paid and non-assessable, have been,
or will be, offered and sold in compliance with all applicable federal and state securities laws
and will conform in all material respects to the description thereof contained in the Prospectus.
Upon payment of the purchase price and delivery of the Offered Securities in accordance herewith,
the Underwriters will receive good valid and marketable title to the Offered Securities, free and
clear of all Liens. The form of the certificates to be used to evidence the Offered Securities
will be in substantially the form filed or incorporated by reference as an exhibit to the
Registration Statement, is in due and proper form and complies with all applicable legal
requirements, the requirements of the charter and bylaws of the Company and the requirements of the
New York Stock Exchange, Inc. (the “NYSE”).
I. Authorization of Issuance of OP Units; Conformity with Applicable Laws; No Preemptive
Rights. The issued and outstanding OP 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.
The OP Units to be issued to the Company in connection with the offering contemplated by this
Agreement have been duly authorized for issuance by the Operating Partnership and, when issued and
delivered by the Operating Partnership to the Company in connection with the contribution of the
net proceeds of the offering, will be validly issued, fully paid and non-assessable. The OP Units
will be exempt from registration or qualification under the Act and applicable state securities
laws. None of the OP Units will be subject to or issued in violation of the preemptive or other
similar rights of any securityholder of the Operating Partnership.
J. No Other Brokerage Fees. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Transaction Entities, any Subsidiary 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, except commissions payable to real estate brokers in connection with the acquisition of
certain properties that would not reasonably be expected to have a Material Adverse Effect.
K. No Registration Rights. Except for 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
“Registration Rights Agreements”) and the Xxxxxxx Xxxxx Warrant (as defined above), there are no
contracts, agreements or understandings between the Transaction Entities and any person granting
such person the right to require the Transaction Entities to file a registration statement under
the Act with respect to any securities of the Transaction Entities owned or to be owned by such
person or to require the Transaction Entities to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
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being registered pursuant to any other registration statement filed by the Transaction
Entities under the Act.
L. 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 its property or
assets of such Transaction Entity or Subsidiary is subject (collectively, “Agreements or
Instruments”), or (iii) is in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or the Properties or any of its other properties or assets may be subject,
except for such defaults or violations that would not have, individually or in the aggregate, a
Material Adverse Effect.
M. No Consents Required. No consent, approval, authorization, or order of, or filing or
registration with, any governmental agency or body or any court or any third party is required for
the consummation of the transactions contemplated by this Agreement, except as have been obtained
or made under the Act and as may be required under state securities laws or the rules of the
National Association of Securities Dealers, Inc. (the “NASD”) or that the absence of which would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
N. Non-Contravention. Except as disclosed in the Prospectus, the execution, delivery and
performance of this Agreement by the Transaction Entities and the consummation of the transactions
contemplated hereby (including the 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, 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,
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redemption or repayment of all or a portion of such indebtedness by the Company, the Operating
Partnership or any Subsidiary.
O. Validity and Sufficiency of Agreements. Each of this Agreement and the Lock-Up Agreements
(as defined below) has been duly and validly authorized, executed and delivered by each of the
Transaction Entities party thereto (and, to the knowledge of the Transaction Entities, by each
other party thereto with respect to the Lock-Up Agreements), and the Operating Partnership
Agreement is a valid and binding agreement of each of the Transaction Entities that are parties
thereto, enforceable against such Transaction Entity (and, to the knowledge of the Transaction
Entities, against each other party thereto with respect to the Lock-Up Agreements) in accordance
with its terms, except (i) to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or other similar laws now
or hereafter in effect relating to or affecting creditors’ rights; (ii) as limited by the effect of
general principles of equity, whether enforcement is considered in a proceeding in equity or at law
(including the possible unavailability of specific performance or injunctive relief), concepts of
materiality, reasonableness, good faith and fair dealing, and the discretion of the court before
which any proceeding therefore may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification or contribution is
contrary to public policy; and (iv) the unenforceability of any provision requiring the payment of
attorney’s fees, except to the extent that a court determines such fees to be reasonable. For
purposes of this Agreement, “Lock Up Agreements” shall mean at the First Closing Date, the lock up
agreements in the form attached hereto as Exhibit A by each of the persons listed on
Schedule III hereto.
P. 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.
Q. 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 schedules and notes, present fairly (1) the financial position of the Company and its
consolidated Subsidiaries (and the combined financial position of any predecessor entities) at the
dates indicated; (2) the results of operations, stockholders’ equity and cash flows of the Company
and its consolidated Subsidiaries (and the combined results of operations, stockholders’ equity,
and cash flows of any predecessor entities) for the periods specified; and (3) the revenues and
certain expenses of certain of the acquisition properties for the periods specified; said financial
statements have been prepared in conformity with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved; said financial statements
have been prepared on a consistent basis with the
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books and records of the Company and its consolidated Subsidiaries (and any predecessor
entities) in the case of the statements of financial position of the Company and its consolidated
Subsidiaries (and the combined financial position of any predecessor entities) and the results of
operations, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries
(and the combined results of operations, stockholders’ equity, and cash flows of any predecessor
entities). The supporting schedules incorporated by reference into the Registration Statement, the
Prospectus and General Disclosure Package present fairly in accordance with GAAP the information
required to be stated therein. The unaudited pro forma consolidated financial statements and the
related notes thereto included in or incorporated by reference into the Registration Statement, the
Prospectus and the General Disclosure Package (the “Pro Forma Financial Statements”) have been
prepared in accordance with the applicable requirements of Rules 11-01 and 11-02 of Regulation S-X
under the Act, and, in the opinion of the Company, the assumptions used in the preparation thereof
are reasonable and provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, and the related adjustments used
therein give appropriate effect to the transactions and circumstances referred to therein and the
pro forma columns therein reflect the proper application of these adjustments to the corresponding
historical financial statement amounts. 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 under
the Act to the extent such rules are applicable to such financial statements. Other than the
historical financial statements, financial statements prepared in accordance with Rule 3-14 of
Regulation S-X under the Act, Pro Forma Financial Statements, and schedules relating thereto
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.
R. 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 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).
S. 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”).
T. 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 against them, to
the extent that any of the foregoing is due and payable, except for any such assessment, fine or
penalty that (i) is currently being contested in good faith, (ii) would not
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reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or
(iii) 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.
U. No Other Offering Documents or Prospectuses. The Transaction Entities and each of the
Subsidiaries have not distributed, and prior to the later of the First Closing Date and the
completion of the distribution of the Offered Securities, will not distribute, any offering
material in connection with the offering or sale of the Offered Securities 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 Representative and its counsel).
V. 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.
W. 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 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,
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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. Other than Centocor, Inc., no tenant which has
been specifically identified in the Prospectus under any of the leases at the Properties has
a right of first refusal to purchase the premises demised under such lease;
(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;
(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
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(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.
X. No Participating Interests. The mortgages and deeds of trust encumbering the Properties
and assets described in the Prospectus are not convertible, and neither the Transaction Entities,
any of 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.
Y. 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.
Z. Environmental Matters. Except as otherwise disclosed in the Prospectus or in Phase I
Environmental Audits previously delivered or made available to the Underwriters or their counsel
(the “Environmental Audits”),
(1) none of the Transaction Entities, any of the Subsidiaries nor, to the best
knowledge of the Transaction Entities, any other owners of each Property at any time or any
other party has at any time handled, stored, treated, transported, manufactured, transferred
or otherwise dealt with, Hazardous Materials (as hereinafter defined) on, to or from the
Properties, other than by any such action taken in compliance with all applicable
Environmental Laws;
(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;
(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;
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(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, nor has, to the best knowledge of the
Transaction Entities, any seller of the Acquisition Properties, received any notice that it
is considered potentially liable under CERCLA or any similar law;
(8) none of the Properties are included or, to the best of the Transaction Entities’
knowledge, proposed for inclusion on the National Priorities List issued pursuant to CERCLA
(as hereinafter defined) by the United States Environmental Protection Agency (the “EPA”)
or, to the best of the Transaction Entities’ knowledge, 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;
(10) to the knowledge of the Transaction Entities, the Properties contain no
above-ground and underground storage tanks, oil/water separators, sumps, or septic systems;
and
(11) (a) to the knowledge of the Transaction Entities, no building or other improvement
located on the Properties contains any asbestos or asbestos-containing
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materials; (b) to the knowledge of the Transaction Entities, all asbestos or
asbestos-containing materials are managed, handled, treated, and removed in compliance with
Environmental Law; and (c) the Transaction Entities do not intend to manage, handle, treat,
or remove asbestos other than in compliance with Environmental Law.
As used herein, “Hazardous Material” means any chemical, substance, waste, material,
pollutant, contaminant, equipment or fixture defined as or deemed hazardous or toxic or otherwise
regulated under any Environmental Law, including, without limitation, RCRA hazardous wastes, CERCLA
hazardous substances, pesticides and other agricultural chemicals, oil and petroleum products or
byproducts and any constituents thereof, urea formaldehyde insulation, lead in paint or drinking
water, asbestos, and polychlorinated biphenyls (PCBs).
As used herein, “Environmental Laws” means all codes, laws (including, without limitation,
common law), ordinances, regulations, reporting or licensing requirements, rules, or statutes in
effect as of the Effective Date relating to pollution or protection of human health or the
environment (including ambient air, surface water, ground water, land surface, or subsurface
strata), including, without limitation (i) the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. §§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 (xi), 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.
AA. 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.
BB. NYSE Listing Approval. The Offered Securities have been approved for listing on the NYSE
subject to official notice of issuance.
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CC. 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.
DD. 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.
EE. 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.
FF. 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 related Unit distributions that are consistent with past practice, there has been no
dividend or 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.
GG. 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”).
HH. 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.
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II. 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.
JJ. 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.
KK. Stabilization Activities. None of the Transaction Entities nor any of their respective
officers, directors, members or controlling persons has taken, or will take, directly or
indirectly, any action designed to or that might reasonably be expected to result in a violation of
Regulation M under the Exchange Act or cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Offered Securities.
LL. Use of Proceeds. The Company intends to apply the net proceeds from the sale of the
Offered Securities being sold by the Company in accordance with the description set forth in the
Prospectus under the heading “Use of Proceeds.”
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 the Company of interests in assets or real property that is
required to be described in the Prospectus that is 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 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.
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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 the Company is not the
subject of a pending proceeding under Section 8A of the Act in connection with the offering of the
Offered Securities.
2. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company, at a purchase price of $27.60 per share,
the respective numbers of shares of Firm Securities set forth opposite the names of the
Underwriters on Schedule I hereto.
The Company will deliver the Firm Securities to the Representative for the accounts of the
Underwriters, including, at the option of the Representative, through the facilities of The
Depository Trust, 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 Representative by the Company at 10:00
a.m., New York time, on August 21, 2006, or at such other time not later than seven full business
days thereafter as the Representative and the Company determine, such time being herein referred to
as the “First Closing Date.” For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date (if later than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold pursuant to the
offering. The Firm Securities will be delivered in such denominations and registered in such names
as the Representative requests, and certificates for the Firm Securities, if any, will be in
definitive form and will be made available for checking and packaging at the office of DLA Xxxxx
Xxxxxxx Xxxx Xxxx US LLP, 0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000 at least 48 hours prior
to the First Closing Date.
In addition, upon written notice from the Representative given to the Company from time to
time not more than 30 days subsequent to the date of the Prospectus, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per share to be paid
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for the Firm Securities. The Company agrees to sell to the Underwriters the number of
Optional Securities specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be purchased for the account
of each Underwriter in the same proportion as the number of shares of Firm Securities set forth
opposite such Underwriter’s name on Schedule I hereto bears to the total number of shares
of Firm Securities (subject to adjustment by the Representative to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from time to time and to
the extent not previously exercised may be surrendered and terminated at any time upon notice by
the Representative to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date,” which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representative but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will deliver the Optional
Securities being purchased on each Optional Closing Date to the Representative for the accounts of
the several Underwriters, against payment of the purchase price therefor in federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank acceptable to the
Representative drawn to the order of BioMed Realty Trust, Inc., at the office of Xxxxxx & Xxxxxxx
LLP. The certificates for the Optional Securities being purchased on each Optional Closing Date
will be in definitive form, in such denominations and registered in such names as the
Representative requests upon reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the office of DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP at a
reasonable time in advance of such Optional Closing Date.
3. Offering by Underwriters. It is understood that the several Underwriters propose to
offer the Offered Securities for sale to the public as set forth in the Prospectus.
4. Certain Agreements of the Company. The Company agrees with the several Underwriters
that:
A. Additional Filings with the Commission. The Company 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 Representative promptly of any such filing pursuant
to Rule 424(b). The Company 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 Representative Relating to Amendments or Supplements.
The Company will advise the Representative promptly of (i) any proposal to
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amend or supplement the Registration Statement, the 462(b) Registration Statement (if any),
the Prospectus or any preliminary prospectus and will not effect such amendment or supplement
without the Representative’s 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 becomes the subject of a proceeding under Section 8A of the Act in connection with the
offering of the Offered Securities. The Company will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting, if issued.
C. Subsequent Events Requiring Amendment or Supplement. If, at any time when a Prospectus
relating to the Offered Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then
amended or supplemented, in the judgment of the Company or the reasonable opinion of the
Representative 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, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly notify the Representative of
such event and will promptly prepare and 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 Representative
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 Representative 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 Representative’s 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 has given the Representative
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 will give the Representative notice of its
intention to make any such filing from the Applicable Time to the Closing Time and will furnish the
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Representative 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 Representative 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), the Company 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. Copies of Documents. The Company will furnish to the Representative copies of each
Registration Statement (one of which will be signed and will include all exhibits and 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 Representative requests. 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.
F. Annual Reports. During the period of five years hereafter, the Company will furnish to the
Representative and, upon request, to each of the other Underwriters, as soon as practicable after
the end of each fiscal year, 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
Representative, to the extent not available through XXXXX or any system succeeding or replacing
XXXXX, as soon as available, a copy of each report of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, and from time to time, such other information
concerning the Company as the Representative may reasonably request.
G. Blue Sky Qualification. The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Representative designates and will
continue such qualifications in effect so long as required for the distribution.
H. Limits on Future Registration Statements; Offers of Securities. For a period of 30 days
after the date of the offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement (except a registration statement on Form S-8 relating to the
Equity Incentive Plan or on Form S-4 relating to an acquisition of another entity) under the Act
relating to, any additional shares of its Common Stock or securities convertible into or
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exchangeable or exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing, without the prior written
consent of the Representative, other than (1) grants of stock options or restricted stock to
employees, consultants or directors pursuant to the terms of the currently existing Equity
Incentive Plan, (2) issuances of Common Stock pursuant to the exercise of any employee stock
options outstanding on the date hereof, (3) issuances of Common Stock pursuant to the Company’s
dividend reinvestment plan (if any), (4) issuances of OP Units in connection with other
acquisitions of real property or real property companies, (5) issuances of Common Stock upon the
conversion of currently outstanding OP Units, or (6) issuances of Common Stock upon exercise of the
Xxxxxxx Xxxxx Warrant.
I. REIT Qualification. The Company will use its best efforts to maintain its qualification as
a REIT under the Code.
J. NYSE Listing. The Company will use its best efforts to effect the listing of the Offered
Securities on the NYSE.
K. Compliance with Laws. During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act, the Company will (1) comply with all provisions of the Act and
the 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.
L. Investment Company. The Company will take such steps as shall be necessary to ensure that
neither the Company nor the Operating Partnership shall become an “investment company” within the
meaning of such term under the Investment Company Act and the rules and regulations of the
Commission thereunder.
M. No Stabilization Activities. Except for the authorization of actions permitted to be taken
by the Underwriters as contemplated herein or in the Prospectus, neither the Company nor the
Operating Partnership will (1) take, directly or indirectly, any action designated to cause or to
result in, or that might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Offered
Securities; (2) sell, bid for or purchase the Offered Securities or pay any person any compensation
for soliciting purchases of the Offered Securities; or (3) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the Company.
N. No Free Writing Prospectus. The Company represents and agrees that, unless it obtains the
prior consent of the Representative, and each Underwriter represents and agrees that, unless it
obtains the prior consent of the Company and the Representative, 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 Representative is hereinafter referred to as
a “Permitted Free Writing Prospectus.” The Company 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
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Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping.
5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Transaction Entities herein, to the accuracy of
the statements of Company officers made pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional conditions precedent:
A. Accountant’s Letter. The Representative shall have received a letter at the time of
execution of this Agreement, of KPMG LLP (“KPMG”) in the form approved by the Representative 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 (as
hereinafter defined for the purposes of this Section 5.A);
(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, inquiries of officials of the Company
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 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 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 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 net assets or
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stockholders’ equity, as compared with amounts shown on the latest balance
sheets included in or incorporated by reference into the Prospectus; or
(c) for the period from the closing date of the latest income statement
included in or incorporated by reference into the Prospectus to the closing date of
the latest available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous year for the
operations of the Company and with the period of corresponding length ended the date
of the latest income statement included in or incorporated by reference into the
Prospectus, in total revenues or net income.
except in all cases set forth in one of the above clauses for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or which are described
in such letter;
(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 or are derived directly from such
records by analysis or computation and to the extent that such dollar amounts, percentages
and other financial information are derived from the general accounting records of any
entity for which KPMG audited the statements of certain revenues and expenses), 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
and any 462(b) Registration Statement, including the prospectus included in the Registration
Statements and any preliminary prospectus.
B. Registration Statement Effectiveness. The Registration Statement has been declared
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 or,
to the knowledge of the Company, shall be contemplated by the Commission. The Prospectus
containing the Rule 430B Information shall have been filed with the Commission
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in the manner and within the time frame required by Rule 424(b) without reliance on Rule
424(b)(8) and in accordance with Section 4 of this Agreement.
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
Representative, is material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the Offered
Securities;
(2) any change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the sole judgment of the
Representative, be likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or in respect of
dealings in the secondary market;
(3) any suspension or limitation of trading in securities generally on the NYSE, or any
setting of minimum prices for trading on such exchange;
(4) any suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market;
(5) any banking moratorium declared by U.S. federal or New York state authorities;
(6) any major disruption of settlements of securities or clearance services in the
United States; or
(7) any attack on, outbreak or escalation of hostilities or act of terrorism involving
the United States, any declaration of war by Congress or any other national or international
calamity, crisis or emergency if, in the reasonable judgment of the Representative, the
effect of any such attack, outbreak, escalation, act, declaration, calamity, crisis or
emergency makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
D. Issuer’s Counsel’s Opinion. The Representative shall have received an opinion, dated on
such Closing Date, of Xxxxxx & Xxxxxxx LLP, special counsel for the Company, to the effect that:
(1) Based on certificates from public officials, such counsel confirms that the Company
is qualified to do business in California;
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(2) Based on certificates from public officials, such counsel confirms that the
Operating Partnership is qualified to do business in the following states: California,
Colorado, Massachusetts, New Jersey, New York, 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
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 your consent, based solely upon a certificate of an officer of the Company and the
Operating Partnership as to factual matters and a review of the limited liability company
agreements or agreements of limited partnership 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 Representative based solely on a certificate of an officer
of the Transaction Entities as to factual matters, each of the Company and the Operating
Partnership is not, and immediately after giving effect to the sale of the Offered
Securities in accordance with the Underwriting Agreement and the application of the proceeds
as described in the Prospectus under the caption “Use Of Proceeds” will not be required to
be registered as, an “investment company” within the meaning of the Investment Company Act;
(5) The execution and delivery of the Underwriting Agreement by the Transaction
Entities, and the issuance and sale of the Offered Securities by the Company to the
Underwriters pursuant to the Underwriting Agreement on the date hereof, do not:
(a) conflict with, result in the breach of or a default under any of the
agreements filed as or incorporated by reference as exhibits to the Registration
Statement;
(b) violate any federal or California statute, rule or regulation applicable to
any such Transaction Entities;
(c) violate the certificate of formation, certificate of partnership, limited
liability company agreement or agreement of limited partnership of any Material
Subsidiary; or
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(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, 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. With the consent of
the Representative, based solely on telephonic confirmation by a member of the Staff of the
Commission on the date of such opinion, such counsel confirms that no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act and no
proceedings therefor have been initiated by the Commission. Any required filing of the
preliminary prospectus and the Prospectus or any supplements thereto pursuant to Rule 424
under the Act has been made in accordance with Rule 424 under the Act (without reference to
Rule 424(b)(8)), and any required filing of each Issuer Free Writing Prospectus pursuant to
Rule 433 has been made in the manner and within the time frame required by Rule 433(d);
(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;
(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 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 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 the date it was declared effective and as of the date of the Prospectus, and the
Prospectus, as of its date, complied as to form in all material respects with the
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 opinion with
respect to Regulation S-T or the financial statements, schedules, or other financial data,
included in, or omitted from, the Registration Statement or Prospectus. Solely for purposes
of passing upon the compliance as to form of the Registration Statement and the Prospectus,
such counsel may assume that the statements made therein are correct and complete;
(10) The Incorporated Documents, when they were filed with the Commission, appeared on
their face to be appropriately responsive in all material respects to the
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applicable requirements of the Exchange Act and the Exchange Act Regulations for
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; 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;
(11) Except for the Registration Rights Agreements, to the best knowledge of such
counsel, no Transaction Entity is a party to any agreement that would (a) require the
inclusion in the Registration Statement of Common Stock owned by any person or entity other
than the Company or (b) entitle such person to require the Company to file a registration
statement under the Act with respect to any securities of the Company; and
In rendering such opinions, such counsel may limit its opinions to the federal laws of the
United States of America and the laws of the state of California, and matters specifically governed
thereby. In rendering such opinions, such counsel may also rely, as to matters of fact (but not as
to legal conclusions), to the extent they deem proper, on certificates of responsible officers of
the Company and public officials.
In addition, such counsel shall state in a separate letter that:
The primary purpose of 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, 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 Representative of even date), and has
not made an independent check or verification thereof (except as aforesaid). However, in
the course of acting as counsel to the Company in connection with the preparation by the
Company of the Registration Statement, Prospectus and General Disclosure Package, such
counsel reviewed the Registration Statement, the Prospectus and General Disclosure Package,
and participated in conferences and telephone conversations with officers and other
representatives of 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 and the General Disclosure Package 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 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 Company that no facts came to such counsel’s attention that caused such
counsel to believe that:
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| • | the Registration Statement, including the 430B Information, at the date of the Prospectus, 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; | ||
| • | 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 in order to make the statements therein, in the light of circumstances under which they were made, not misleading; or | ||
| • | the Prospectus, as of its issue date or as of the date of such counsel’s opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
it being understood that 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 or the Prospectus or the General Disclosure
Package.
E. Tax Opinion. The Representative shall have received an opinion, dated such Closing Date, of
Xxxxxx & Xxxxxxx LLP, special tax counsel for the Company, to the effect that:
(1) 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 Registration Statement set forth under the caption “Federal
Income Tax Considerations” insofar as they purport to summarize certain provisions of the
agreements, 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”), special Maryland counsel of the
Company, dated as of the Closing Date, with respect to certain matters of Maryland law.
X. Xxxxxxx Opinion. The Representative shall have received an opinion, dated such Closing
Date, of Venable, special Maryland counsel of the Company, to the effect that:
(1) The Company is a corporation duly incorporated and existing under and by virtue of
the laws of the state of Maryland and is in good standing with the Maryland State Department
of Assessments and Taxation (the “SDAT”). The Company has the corporate power to own its
properties and to conduct its business in all material respects
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as described in the Prospectus under the caption “BioMed Realty Trust, Inc.,” and to
enter into and perform its obligations under this Agreement.
(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 “BioMed Realty Trust, Inc.,” and to enter into and perform its obligations under
this Agreement.
(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. All of the issued and outstanding shares of capital stock of BioMed
Holdings have been duly authorized and validly issued and are fully paid and non-assessable.
With your consent, based solely upon a certificate of an officer of the Company as to
factual matters dated the Closing Date and a review of the charter and bylaws, all of the
outstanding capital stock of BioMed Holdings is owned of record by the Company.
(4) The Company has an authorized capitalization as set forth in the Prospectus under
the caption “Capitalization,” and the issued and outstanding shares of Common Stock (other
than the Offered Securities) (the “Company Outstanding Shares”) have been duly authorized
and validly issued and are fully paid and non-assessable. The terms of the Common Stock
conform, in all material respects, to the statements and descriptions related thereto
contained in the Prospectus. The issuance of the Company Outstanding Shares by the Company
was not subject to preemptive or other similar rights arising under the Maryland General
Corporation Law (the “MGCL”), the Company’s articles of incorporation (the “Charter”) or
bylaws (the “Bylaws”). The certificate for the Common Stock complies in all material
respects with the applicable requirements of the MGCL, the Charter, and the Bylaws. Except
as disclosed in the Prospectus and based on a certificate of an officers of the Transaction
Entities and upon any facts otherwise known to such counsel except for: (a) shares of Common
Stock reserved for issuance upon exchange or redemption of the OP Units, in connection with
the Equity Incentive Plan or pursuant to the exercise of the Xxxxxxx Xxxxx Warrant, no
shares of Common Stock are reserved for any purpose; (b) the OP Units and the Xxxxxxx Xxxxx
Warrant, there are no outstanding securities convertible into or exchangeable for any shares
of Common Stock; and (c) the Xxxxxxx Xxxxx Warrant, 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.
(5) The Company has the full power and authority to authorize, issue, and sell the
Offered Securities as contemplated by this Agreement. The issuance of the Offered
Securities has been duly authorized and, when issued and delivered by the Company pursuant
to this Agreement against payment of the consideration set forth herein, the Offered
Securities will be validly issued, fully paid and non-assessable and will conform, in all
material respects, to the description thereof contained in the Prospectus. The
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issuance of the Offered Securities by the Company is not subject to preemptive or other
similar rights arising under the MGCL, the Charter or the Bylaws.
(6) The outstanding OP Units have been duly authorized and validly issued and are fully
paid and non-assessable. The issuance of the OP Units by the Operating Partnership is not
subject to preemptive or other similar rights arising under the Maryland Revised Uniform
Limited Partnership Act or the Operating Partnership Agreement. The terms of the OP Units
conform, in all material respects, to the description thereof contained in the Prospectus.
(7) The execution, delivery and performance of this Agreement, and the transactions
contemplated thereby and the sale and issuance of the Offered Securities do not conflict
with or result in a breach or violation of, or constitute a default under, (a) any Maryland
law, or any decree, rule or regulation of any Maryland governmental authority applicable to
the Transaction Entities or (b) the Charter, the Bylaws or the Operating Partnership
Agreement.
(8) The execution and delivery of this Agreement have been duly authorized by all
necessary corporate or limited partnership action, as applicable, of each Transaction Entity
that is a party hereto. This Agreement has been executed and, so far as is known to such
counsel, delivered by each Transaction Entity that is a party hereto. The Operating
Partnership Agreement constitutes the legal, valid, and binding obligation of each
Transaction Entity that is a party thereto, enforceable against each Transaction Entity that
is a party thereto in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to general
principles of equity and, with respect to equitable relief, the discretion of the court
before which any proceeding therefor may be brought (regardless of whether enforcement is
sought in a proceeding at law or in equity).
(9) The information included in or incorporated by reference to the Prospectus under
the captions “Risk Factors—Risks Related to Our Organizational Structure,” “Description of
Common Stock,” “Description of Units,” “Restrictions on Ownership and Transfer,” “Certain
Provisions of Maryland Law and of Our Charter and Bylaws” and “Description of the
Partnership Agreement of BioMed Realty, L.P.,” as of the date of the Prospectus, insofar as
such information relates to provisions of Maryland law or the Company’s or the Operating
Partnership’s organizational documents, fairly summarizes such provisions of Maryland law or
the Company’s or the Operating Partnership’s organizational documents, in all material
respects.
(10) The execution, delivery and performance of this Agreement and the transactions
contemplated hereby and the sale and issuance of the Offered Securities do not require any
consents, approvals, authorizations, or orders to be obtained by any such Transaction
Entities, or any registrations, declarations, or filings to be made by such Transaction
Entities, in each case, under any Maryland statute, rule, or regulation applicable to the
Transaction Entities that have not been obtained or made.
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In rendering such opinions, such counsel may limit its opinions to the laws of the state of
Maryland, and matters specifically governed thereby. In rendering such opinion, such counsel may
rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
G. Underwriters’ Counsel’s Opinion. On any Closing Date other than the First Closing Date,
the Representative shall have received from DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, counsel for the
Underwriters, such opinion or opinions, dated such Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the Representative may
require, and the Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. In rendering such opinion, DLA Xxxxx
Xxxxxxx Xxxx Xxxx US LLP may rely as to the organization or incorporation of the Transaction
Entities and all other matters governed by Maryland law upon the opinion of Venable, referred to
above.
H. Officers’ Certificates. Each Transaction Entity shall have furnished the Representative a
certificate, dated such Closing Date, of its, or its general partner’s or managing member’s chief
executive officer(s) and 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;
(2) the Transaction Entities have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to such Closing
Date;
(3) no stop order suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are contemplated by the
Commission;
(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, and
(5) the 462(b) Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including
payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter.
I. Accountant’s Letter. The Representative shall have received a letter, dated as of the date
of this Agreement and each such Closing Date, of KPMG LLP which meets the requirements of
Section 5.A, except that the specified date referred to in such subsection will be a date
not more than three days prior to the date of this Agreement or such Closing Date, as applicable,
for the purposes of this subsection.
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J. Lock-Up Agreements. On or prior to the date of this Agreement, the Representative shall
have received executed Lock-Up Agreements from each of the persons listed on Schedule III hereto.
K. NASD Approval. The NASD shall have confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and arrangements with respect
to the offering and sale of the Offered Securities.
L. NYSE Listing. At the Closing Date, the Offered Securities shall have been approved for
listing on the NYSE, subject only to official notice of issuance.
M. Satisfaction of Other Conditions. On the Closing Date, counsel for the Underwriters shall
have been furnished with such other documents as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Offered Securities as herein contemplated
and related proceedings, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Transaction Entities in connection with the issuance and sale of the Offered
Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
N. 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.
O. Copies of Documents; Waiver of Compliance. The Company will furnish the Representative
with such conformed copies of such opinions, certificates, letters and documents as the
Representative may reasonably request. The Representative may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters
hereunder, whether in respect of an Optional Closing Date or otherwise.
| 6. | Indemnification and Contribution. |
A. The Transaction Entities, jointly and severally, will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, employees and agents and each person, if
any, who controls such Underwriter within the meaning of the Act or the Exchange Act, against any
losses, claims, damages, liabilities or expenses, joint or several, to which any of them may become
subject under the Act, the Exchange Act or other federal or state statutory law or regulation or at
common law, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, 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,
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however, that the Transaction Entities will not be liable in any such case to the extent that
any such loss, claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the information described
as such in Section 6.B below.
B. Each Underwriter severally and not jointly will indemnify and hold harmless each
Transaction Entity, each of its directors and officers who signs the Registration Statement or who
consents to being named as a director upon the First Closing Date and each person, if any who
controls the Company within the meaning of the Act or the Exchange Act, against any losses, claims,
damages, liabilities or expenses to which any of them may become subject, under the Act, 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 Representative specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by each indemnified party in
connection with investigating or defending any such loss, claim, damage, liability, action or
expense as such expenses are incurred, it being understood and agreed that the only such
information furnished on behalf of each Underwriter consists of the following information: the
list of Underwriters and their respective participation in the sale of the Offered Securities, the
concession and reallowance sentences and the paragraphs related to stabilization, syndicate
covering transactions and penalty bids appearing under the caption “Underwriting” in the
Prospectus.
C. Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under Section 6.A or 6.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
otherwise than 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
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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 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
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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 either the First or any Optional Closing
Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total number of shares of
Offered Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representative may make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such arrangements are
made by such Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to the Representative and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 6 above (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As used in this
Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
8. Expenses. Whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid the following: (1) the fees,
disbursements and expenses of the Company’s counsel and accountants in connection with the
registration of the 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, this Agreement and all amendments or
supplements to any of them as may be reasonably requested for use in
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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 NASD of the fairness of the terms of the sale of the Offered Securities; (5) the fees
and expenses associated with listing the Offered Securities on the NYSE; (6) the cost of preparing
stock certificates; (7) the costs and charges of any transfer agent or registrar; (8) the cost of
the tax stamps, if any, in connection with the issuance and delivery of the Offered Securities to
the respective Underwriters; (9) all other fees, costs and expenses referred to in Item 31 of the
Registration Statement; and (10) the transportation, lodging, graphics and other expenses
incidental to the Company’s preparation for and participation in 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 for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representative, c/o
Raymond Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention:
General Counsel with a copy to DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, 0000 Xxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq. or, if sent to the Transaction
Entities, will be mailed, delivered or telegraphed and confirmed to the Company, Attention:
General Counsel with a copy to Xxxxxx & Xxxxxxx LLP, Attention: Xxxxx X. Xxxxxx, Esq.; provided,
however, that any notice to an Underwriter pursuant to Section 6 will be mailed, delivered
or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or obligation
hereunder.
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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 Representative will act for the several
Underwriters in connection with this financing, and any action under this Agreement taken by the
Representative will be binding upon all the Underwriters.
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.
15. Applicable Law and Venue. This agreement shall be governed by, and construed in
accordance with, the laws of the state of Florida, without regard to principles of conflict of
laws.
The Company hereby submits to the non-exclusive jurisdiction of the federal and state courts
in Florida in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representative’s understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||
| BIOMED REALTY TRUST, INC. | ||||||
| By: | /s/ Xxxx X. Gold | |||||
| Name: Xxxx X. Gold | ||||||
| Title: Chief Executive Officer and President | ||||||
| BIOMED REALTY, L.P. | ||||||
| By: BioMed Realty Trust, Inc., its general partner | ||||||
| By: | /s/ Xxxx X. Gold | |||||
| Name: Xxxx X. Gold | ||||||
| Title: Chief Executive Officer and President | ||||||
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above
written.
| XXXXXXX XXXXX & ASSOCIATES, INC. | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
| Name: Xxxxxxx X. Xxxxxx | ||||
| Title: SVP | ||||
Acting on behalf of itself and as the Representative of the several Underwriters.
[Signature Page to BioMed Realty Trust, Inc. Underwriting Agreement]
