Exhibit 1.1
11,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
BIOMED REALTY TRUST, INC.
(A MARYLAND CORPORATION)
FORM OF UNDERWRITING AGREEMENT
June __, 2005
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representative of the Several Underwriters listed on Schedule I hereto
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
BioMed Realty Trust, Inc., a Maryland corporation (the "COMPANY"), and
BioMed Realty, L.P., a Maryland limited partnership (the "OPERATING PARTNERSHIP"
and together with the Company, the "TRANSACTION ENTITIES"), each confirms its
agreement with Xxxxxxx Xxxxx & Associates, Inc. ("XXXXXXX XXXXX") and each of
the other underwriters named in Schedule I hereto (the "UNDERWRITERS") for whom
Xxxxxxx Xxxxx is acting as representative (the "REPRESENTATIVE") with respect to
the issuance and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of 11,000,000 shares (the "FIRM SECURITIES")
of the Company's common stock, par value $0.01 per share (the "COMMON STOCK"),
and with respect to the grant by the Company to the Underwriters, acting
severally and not jointly, of an option to purchase an aggregate of not more
than 1,650,000 additional shares of Common Stock (the "OPTIONAL SECURITIES"),
subject to the terms and conditions set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "OFFERED SECURITIES."
This agreement by and among the Company, the Operating Partnership and the
Underwriters shall be referred to as this "AGREEMENT".
As part of the offering contemplated by this Agreement, the Company and
the Underwriters agree that up to 379,500 shares (the "DIRECTED SHARES") of the
Offered Securities to be purchased by the Underwriters shall be reserved for
sale by the Underwriters to certain of the Company's directors, officers,
employees and other parties associated with the Company (each, individually a
"PARTICIPANT" and collectively, the "PARTICIPANTS"), as part of the distribution
of the Shares by the Underwriters, under the terms of the friends and family
directed sales program (the "FRIENDS AND FAMILY PROGRAM"), and subject to the
terms of this Agreement, the applicable rules, regulations and interpretations
of the National Association of Securities Dealers, Inc. and all other applicable
laws, rules and regulations. Shares to be sold pursuant to the Friends and
Family Program shall be sold pursuant to this Agreement at the public offering
price. To the extent that any such Directed Shares are not orally confirmed for
purchase by a Participant by the end of the first business day after the date of
this Agreement,
such Directed Shares may be offered to the public as part of the public offering
contemplated hereby.
1. REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION ENTITIES. Each of
the Transaction Entities, jointly and severally, represents and warrants
to, and agrees with, the several Underwriters, that:
A. REGISTRATION STATEMENT.
(1) A registration statement on Form S-11 (No. 333-_____) relating
to the Offered Securities ("INITIAL REGISTRATION STATEMENT"), including a
form of prospectus, has been filed with the Securities and Exchange
Commission (the "COMMISSION") and either (i) has been declared effective
under the Securities Act of 1933, as amended (the "ACT"), and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment.
(2) If the Initial Registration Statement has been declared
effective, either (i) an additional registration statement ("ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities has been filed
with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act
and has become effective upon filing pursuant to such rule and the Offered
Securities all have been duly registered under the Act pursuant to the
Initial Registration Statement and the Additional Registration Statement;
(ii) such Additional Registration Statement is under consideration for
filing with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such rule, and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the Initial Registration Statement and such Additional
Registration Statement; or (iii) it is not contemplated to file an
Additional Registration Statement, and the Offered Securities all have
been duly registered under the Act pursuant to the Initial Registration
Statement.
(3) If the Company does not propose to amend the Initial
Registration Statement or if an Additional Registration Statement has been
filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the Additional Registration Statement, Rule 462(b).
(4) For purposes of this Agreement, the "EFFECTIVE TIME" with
respect to the Initial Registration Statement and, if filed prior to the
execution and delivery of this Agreement, the Additional Registration
Statement means:
(a) if the Company has advised the Representative that it does
not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared
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effective by the Commission or has become effective upon filing
pursuant to Rule 462(c); or
(b) if the Company has advised the Representative that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective
by the Commission.
(5) If an Additional Registration Statement has not been filed prior
to the execution and delivery of this Agreement but the Company has
advised the Representative that it proposes to file one, "EFFECTIVE TIME"
with respect to such Additional Registration Statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b).
(6) "EFFECTIVE DATE" with respect to the Initial Registration
Statement or the Additional Registration Statement (if any) means the date
of the Effective Time thereof.
(7) The Initial Registration Statement, as amended at its Effective
Time, including all information contained in the Additional Registration
Statement (if any) and deemed to be a part of the Initial Registration
Statement as of the Effective Time of the Additional Registration
Statement pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part of the
Initial Registration Statement as of its Effective Time pursuant to Rule
430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the
"INITIAL REGISTRATION STATEMENT."
(8) The Additional Registration Statement, as amended at its
Effective Time, including the contents of the Initial Registration
Statement incorporated by reference therein and including all information
(if any) deemed to be a part of the Additional Registration Statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT."
(9) The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT."
(10) The form of prospectus relating to the Offered Securities, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as
included in a Registration Statement, is hereinafter referred to as the
"PROSPECTUS."
(11) No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(12) For purposes of this Agreement (other than in connection with
any opinion given by counsel in Section 5 hereof, which hereby expressly
excludes any copy filed via Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX")), all references to
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the "REGISTRATION STATEMENT", the "PROSPECTUS", any "PRELIMINARY
PROSPECTUS", or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to XXXXX.
B. CONFORM TO ACT; NO MISLEADING STATEMENTS; CONFORMITY WITH XXXXX
FILINGS.
(1) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement:
(a) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(b) on the Effective Date of the Additional Registration
Statement (if any) each Registration Statement conformed, or will
conform, in all material respects to the requirements of the Act and
the Rules and Regulations and did not include, or will not include,
any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and
(c) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conform, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each of
the Registration Statement or Registration Statements and the
Prospectus conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and none of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein (with respect to the Prospectus only, in light of the
circumstances under which they were made) not misleading.
(2) If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, then on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein (with respect to the Prospectus only in
light of the circumstances under which they were made) not misleading, and
no Additional Registration Statement has been or will be filed.
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(3) The two preceding subsections do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representative specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
6.B hereof.
(4) Each Prospectus and preliminary Prospectus delivered to the
Underwriters and used in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T under
the Act.
C. NO STOP ORDER. No stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of either of the
Transaction Entities, threatened by the Commission or by the state securities
authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued, and no proceeding for that purpose has been
instituted or, to the knowledge of either of the Transaction Entities,
threatened by the Commission or by the state securities authority of any
jurisdiction.
D. COMPANY FORMATION; GOOD STANDING; QUALIFICATION. The Company has been
duly formed and is validly existing as a corporation in good standing under the
laws of the State of Maryland, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and as general
partner of the Operating Partnership to cause the Operating Partnership to enter
into and perform the Operating Partnership's obligations under this Agreement,
and the Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to so qualify would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the condition
(financial or other), business, earnings, properties, assets, results of
operations or prospects of the Transaction Entities and their subsidiaries taken
as a whole, whether or not in the ordinary course ("MATERIAL ADVERSE EFFECT").
E. OPERATING PARTNERSHIP FORMATION; GOOD STANDING; QUALIFICATION;
INTERESTS IN OPERATING PARTNERSHIP. The Operating Partnership has been duly
formed and is validly existing as a limited partnership in good standing under
the laws of the State of Maryland, is duly qualified to do business and is in
good standing as a foreign limited partnership in each 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. At the
First Closing Date (defined in Section 2 below), the Second Amended and Restated
Agreement of Limited Partnership of the Operating Partnership, as amended (the
"OPERATING PARTNERSHIP AGREEMENT"), and the aggregate percentage interests of
the Company and the limited partners in the Operating Partnership will be as set
forth in the Prospectus; provided, that to the extent any portion of the
over-allotment option described in Section 2 hereof
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is exercised at the First Closing Date, the percentage interest of the Company
and of such limited partners in the Operating Partnership will be adjusted
accordingly. Additionally, to the extent any portion of such over-allotment
option is exercised subsequent to the First Closing Date, the Company will
contribute the proceeds from the sale of the Optional Securities to the
Operating Partnership in exchange for a number of units of limited partnership
of the Operating Partnership ("OP UNITS") equal to the number of Optional
Securities issued.
F. SUBSIDIARY FORMATION; GOOD STANDING; QUALIFICATION; LIENS; PRE-EMPTIVE
RIGHTS. Each direct or indirect subsidiary of the Company, 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, at the
First Closing Date its capital stock or other ownership interests will be owned
by the Company, directly or through subsidiaries, free and clear of any security
interests, liens, mortgages, encumbrances, pledges, claims, defects or other
restrictions of any kind (collectively, "LIENS"), except 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
capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus under the caption "Description
of Securities" and the issued and outstanding capital stock of the Company, as
of the First Closing Date, will be, in all material respects, as set forth in
the Prospectus under the caption "Capitalization." None of the outstanding
shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company. Except as
disclosed in the Prospectus: (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, 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.
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H. AUTHORIZATION OF ISSUANCE OF SHARES; CONFORMITY WITH APPLICABLE LAWS.
The Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital stock of
the Company are, and, when the Offered Securities have been delivered and paid
for in accordance with this Agreement on each Closing Date, such Offered
Securities will have been, validly issued, fully paid and non-assessable, have
been, or will be, offered and sold in compliance with all applicable federal and
state securities laws and will conform, in all material respects, to the
description thereof contained in the Prospectus. Upon payment of the purchase
price and delivery of the Offered Securities in accordance herewith, the
Underwriters will receive good, valid and marketable title to the Offered
Securities, free and clear of all Liens. The form of the certificates to be used
to evidence the Offered Securities will, at the First Closing Date, be in due
and proper form and will comply with all applicable legal requirements, the
requirements of the charter and bylaws of the Company and the requirements of
the New York Stock Exchange, Inc. (the "NYSE").
I. AUTHORIZATION OF ISSUANCE OF OP UNITS; CONFORMITY WITH APPLICABLE LAWS;
NO PREEMPTIVE RIGHTS. The 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 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 (the "REGISTRATION RIGHTS AGREEMENTS"),
there are no contracts, agreements or understandings between the Transaction
Entities and any person granting such person the right to require the
Transaction Entities to file a registration statement under the Act with respect
to any securities of the Transaction Entities owned or to be owned by such
person or to require the Transaction Entities to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Transaction Entities under the Act.
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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 such consents,
approvals, authorizations, orders, filings or registrations that will be
obtained or completed by the First Closing Date, or that the absence of which,
individually or in the aggregate would not reasonably be expected to have,
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 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 their 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 response to subclauses (i) and (ii) above) (1) would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or (2) relate to mortgage indebtedness to be repaid in full or
equity interests to be purchased in full, with a portion of the net proceeds
from the sale of the Offered Securities, as reflected in the "Use of Proceeds"
section of the Prospectus. As used herein, "REPAYMENT EVENT" means any event or
condition which, without regard to compliance with any notice or other
procedural requirements, gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any Subsidiary.
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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 (the "KEY
OFFICERS").
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 the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly (1) the financial position of the Company and its
consolidated subsidiaries (and the combined financial position of any
predecessor entities) at the dates indicated; (2) the results of operations,
owners' equity and cash flows of the Company and its consolidated Subsidiaries
(and the combined results of operations, owners' equity, and cash flows of any
predecessor entities) for the periods specified; and (3) the revenues and
certain expenses of certain of the acquisition properties for the periods
specified; said financial statements have been prepared in conformity with 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 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
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the combined financial position of any predecessor entities) and the results of
operations, owners' equity and cash flows of the Company and its consolidated
Subsidiaries (and the combined results of operations, owners' equity, and cash
flows of any predecessor entities). The supporting schedules included in the
Registration Statement present fairly in accordance with GAAP the information
required to be stated therein. The unaudited pro forma condensed consolidated
financial statements and the related notes thereto included in the Registration
Statement and the Prospectus (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 the Registration Statement and the
Prospectus 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
the Registration Statement and Prospectus, no other historical or pro forma
financial statements (or schedules) are required by the Act or the Rules and
Regulations to be included therein.
R. INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM. The accountants who
certified the financial statements and supporting schedules included in the
Registration Statement and delivered the initial letter referred to in Section
5.A hereof, are an independent registered public accounting firm as required by
the Act and the Rules and Regulations.
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 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 their subsidiaries have not distributed, and prior to the later of
the First Closing Date and the completion of the distribution of the Offered
Securities, will not distribute, any offering
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material in connection with the offering or sale of the Offered Securities other
than the Registration Statement, the Prospectus or any other materials, if any,
permitted by the Act (which were disclosed to the Representative and its
counsel).
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 their subsidiaries
do not constitute "plan assets" of an ERISA regulated employee benefit
plan.
(3) At the First Closing Date, the Company will be a "real estate
operating company" as such term is defined in paragraph (e) of the plan
assets regulation in 29 C.F.R. Section 2510.3-101, or will be an
"operating company" as defined in the first sentence of paragraph (c)
thereof.
W. PROPERTY MATTERS.
(1) The Transaction Entities or their Subsidiaries will have fee
simple title (or in the case of the Landmark at Eastview property, located
in Tarrytown, New York, a leasehold interest) to all of the properties
described in the Prospectus as owned or to be owned or leased by them (the
"PROPERTIES"), in each case, free and clear of all Liens except such as
(i) are set forth in the title reports listed on Schedule IV hereto (the
"TITLE REPORTS"); (ii) are set forth on Schedule V hereto (the
"Mortgages") (iii) are disclosed in the Prospectus; and (iv) would not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect;
(2) Except as disclosed in the Prospectus, none of the Transaction
Entities, nor any Subsidiary, knows of any violation of any municipal,
state or federal law, rule or regulation (including those pertaining to
environmental matters) concerning the
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Properties or any part thereof which would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
(3) Each of the Properties complies with all applicable zoning laws,
ordinances, regulations, and deed restrictions or other covenants in all
material respects 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;
(4) 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;
(5) True, correct and complete copies of the leases, exhibits,
schedules or other documents that comprise the leases described in the
"Business and Properties" section of the Prospectus where (1) the tenant
has been specifically identified or (2) information relating to a lease
has been summarized even if such tenant has not been specifically
identified (the "MAJOR LEASES") have been provided or made available to
the Underwriters or their counsel;
(6) Except as described in the Prospectus, there are no other
material agreements between any Transaction Entity, or any Subsidiary, on
the one hand and a tenant under a Major Lease relating to any of the
Properties;
(7) Except as described in the Prospectus, reflected in the Pro
Forma Financial Statements, as disclosed in any tenant estoppel
certificates that are listed on Schedule VI hereto, or as would not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect:
(a) none of the Major Leases has been assigned;
(b) no brokerage fees, commissions or any similar payments are
owed or payable by the lessor under any of the Major Leases to any
third party in connection with the existence or execution thereof,
or in connection with any renewal, expansion or extension of any
Major Leases which has occurred prior to, or may occur after, a
Closing Date, except additional fees payable to brokers in
connection with the extension of certain leases in the ordinary
course of business;
(c) all of the Major Leases, and, all guaranties related
thereto, if any, are in full force and effect;
(d) no rentals or other amounts due under the Major Leases
have been paid more than one month in advance;
(e) no tenant has asserted in writing any defense or set-off
against the payment of rent in connection with the Major Leases nor
has any tenant contested
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any tax, operating cost or other escalation payment or occupancy
charge, or any other amounts payable under its Major Leases;
(f) all tenants, sublessees, licensees, franchisees or
other parties under the Major Leases are in possession of
their respective premises;
(g) except for the mortgage loans encumbering the Properties
and described in the Prospectus or set forth on Schedule V hereto,
none of the Major Leases has been assigned, mortgaged, pledged,
sublet, hypothecated or otherwise encumbered;
(h) no material provision under any Major Lease has
been waived by any Transaction Entity;
(i) there are no uncured events of default, or events that
with the giving of notice or passage of time, or both, would
constitute an event of default, by any tenant under any of the terms
and provisions of the Major Leases;
(j) no tenant under any of the leases at the Properties has a
right of first refusal to purchase the premises demised under such
lease.
(8) Water, stormwater, sanitary sewer, electricity and telephone
service are all available at the property lines of each Property over duly
dedicated streets or perpetual easements of record benefiting the
applicable Property, except as would not reasonably be expected to 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 their Subsidiaries,
nor any person affiliated therewith holds a participating interest therein, and
such mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property not owned directly or indirectly by the
Transaction Entities or any of their subsidiaries.
Y. INSURANCE. Except as described or referred to in the Prospectus, at the
First Closing Date, the Operating Partnership and any Subsidiary that owns, or
leases under ground leases, real property will have obtained title insurance on
the fee interests (or leasehold interests) in each of the Properties and other
insurance covering such risks and in amounts that are commercially reasonable
for the assets owned by them, and in each case such title insurance and other
insurance is (or will be) in full force and effect. Neither the Transaction
Entities nor any of the Subsidiaries has any reason to believe that any of them
will not be able to obtain or renew its existing insurance coverage as and when
required by the preceding or as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business.
Z. ENVIRONMENTAL MATTERS. Except as otherwise disclosed in the Prospectus
or in the Phase I Environmental Audits previously delivered or made available to
the Underwriters or their counsel (the "ENVIRONMENTAL AUDITS"),
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(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;
(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
-14-
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 their Subsidiaries other
than in compliance with applicable Environmental Laws;
(10) to the knowledge of the Transaction Entities, the Properties
contain no above-ground and underground storage tanks, oil/water
separators, sumps, or septic systems; and
(11) (a) to the knowledge of the Transaction Entities, no building
or other improvement located on the Properties contains any asbestos or
asbestos-containing materials; (b) to the knowledge of the Transaction
Entities, all asbestos or asbestos-containing materials are managed,
handled, treated, and removed in compliance with Environmental Law; and
(c) the Transaction Entities do not intend to manage, handle, treat, or
remove asbestos other than in compliance with Environmental Law.
As used herein, "HAZARDOUS MATERIAL" means any chemical, substance, waste,
material, pollutant, contaminant, equipment or fixture defined as or deemed
hazardous or toxic or otherwise regulated under any Environmental Law,
including, without limitation, RCRA hazardous wastes, CERCLA hazardous
substances, pesticides and other agricultural chemicals, oil and petroleum
products or byproducts and any constituents thereof, urea formaldehyde
insulation, lead in paint or drinking water, asbestos, and polychlorinated
biphenyls (PCBs).
As used herein, "ENVIRONMENTAL LAWS" means all codes, laws (including,
without limitation, common law), ordinances, regulations, reporting or licensing
requirements, rules, or statutes in effect as of the Effective Date relating to
pollution or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata),
including, without limitation (i) the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"); (ii)
the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C.Section 6901 et seq., ("RCRA"); (iii) the Emergency
Planning and Community Right to Know Act (42 U.S.C.Section 11001 et seq.); (iv)
the Clean Air Act (42 U.S.C.Section 7401 et seq.); (v) the Clean Water Act (33
U.S.C.Section 1251 et seq.); (vi) the Toxic Substances Control Act (15
U.S.C.Section 2601 et seq.); (vii) the Hazardous Materials Transportation Act
(49 U.S.C.Section 5101 et seq.); (viii) the Safe Drinking Water Act (41
U.S.C.Section 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)
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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 Environmental Audits with respect to any of the
Properties was employed for such purpose on a contingent basis or has any
substantial interest (contingent or otherwise) in the Transaction Entities or
any of their Subsidiaries (including any predecessor entity), and none of them
nor any of their directors, officers or employees is connected with the
Transaction Entities or any of their Subsidiaries (or any of their predecessor
entities) as a promoter, selling agent, voting trustee, director, officer or
employee.
BB. NYSE LISTING APPROVAL. The Offered Securities have been approved for
listing on the NYSE subject to official notice of issuance.
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 their
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business
now operated or presently intended to be operated by them, or presently employed
by them, and have not received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property Rights that,
if determined adversely to the Transaction Entities or any of their
subsidiaries, would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
EE. NO PROCEEDINGS. Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Transaction
Entities, any of the Subsidiaries or any of the Properties or other assets that,
if determined adversely to the Transaction Entities or any of the Subsidiaries,
would reasonably be expected to have, 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, since the date of the latest audited financial
statements included in the Prospectus (1) there has been no material adverse
change, nor any development or event
-16-
involving a prospective material adverse change, individually or in the
aggregate, in the condition (financial or other), business, properties,
earnings, results of operations or prospects of the Company and its Subsidiaries
taken as a whole whether or not in the ordinary course; or (2) there have been
no transactions entered into by the Company nor any of its Subsidiaries which
are material with respect to the Company and its Subsidiaries considered as one
entity.
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 Registration Statement or
the Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
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
Securities Exchange Act of 1934, as amended (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
-17-
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'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.
PP. FRIENDS AND FAMILY PROGRAM. Neither the Company, nor any of its
directors or officers, nor, to the knowledge of the Company, any other person
associated with or acting on behalf of the Company including, without
limitation, any agent or employee of the Company, has offered or caused the
Underwriters to offer any of the Shares to any person pursuant to the Friends
and Family Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or supplier's level
or type of business with the Company or (ii) a trade journalist or publication
to write or publish favorable information about the Company or its products.
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 $ [____] 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, against payment of the purchase price in federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to the Representative drawn to the order of BioMed Realty
Trust, Inc. at the office of Xxxxxx & Xxxxxxx LLP, 00000 Xxxx Xxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX 00000, at 12:00 p.m., New York time, on _____ __, 2005, or at
such other time not later than seven full business days thereafter as the
Representative and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representative requests and
will be made available for checking and packaging at the office of 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.
-18-
In addition, upon written notice from the Representative given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per share to be paid for the Firm Securities.
The Company agrees to sell to the Underwriters the number of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
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. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement, the Company will file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement.
The Company will advise the Representative promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
Additional Registration Statement is necessary to register
-19-
a portion of the Offered Securities under the Act, but the Effective Time
thereof has not occurred as of such execution and delivery, the Company will
file the Additional Registration Statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 p.m., New York time, on the
date of this Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at such
later date as shall have been consented to by the Representative.
B. REQUIRED NOTICES TO AND CONSENT OF REPRESENTATIVE RELATING TO
AMENDMENTS OR SUPPLEMENTS. The Company will advise the Representative promptly
of any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any), the
Prospectus or any preliminary Prospectus and will not effect such amendment or
supplementation without the Representative's consent; and the Company will also
advise the Representative promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and delivery of
this Agreement) and of any amendment or supplement to a Registration Statement
or the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
C. SUBSEQUENT EVENTS REQUIRING AMENDMENT OR SUPPLEMENT. If, at any time
when a Prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly notify
the Representative of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such compliance.
Neither the Representative's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
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 of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence, "AVAILABILITY DATE"
means the 45th day after the end of the fourth fiscal quarter following the
fiscal quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year, "AVAILABILITY
DATE" means the 90th day after the end of such fourth fiscal quarter.
E. COPIES OF DOCUMENTS. The Company will furnish to the Representative
copies of each Registration Statement (one of which will be signed and will
include all exhibits), each related preliminary Prospectus, and, so long as a
prospectus relating to the Offered Securities is
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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 request. The
Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the
business day following the later of the execution and delivery of this Agreement
or the Effective Time of the Initial Registration Statement. All other documents
shall be so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents. The
aforementioned documents furnished to the Underwriters or to any dealer shall be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T
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, a copy
of its annual report to stockholders for such year and as soon as available, a
copy of each definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders; and the Company will furnish
to the Representative (i) to the extent not available through XXXXX or any
system succeeding or replacing XXXXX, as soon as available, a copy of each
report of the Company filed with the Commission under the Exchange Act or mailed
to stockholders, and (ii) from time to time, such other information concerning
the Company as the Representative may reasonably request.
G. BLUE SKY QUALIFICATION. The Company will arrange for the qualification
of the Offered Securities for sale under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in effect so
long as required for the distribution.
H. LIMITS ON FUTURE REGISTRATION STATEMENTS. For a period of 90 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
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 Equity Incentive Plan, (2) issuances of
Common Stock pursuant to the exercise of such options or the exercise of any
other employee stock options outstanding on the date hereof, (3) issuances of
Common Stock pursuant to the Company's dividend reinvestment plan (if any); (4)
issuances of Common Stock in connection with other acquisitions of real property
or real property companies or (5) issuances of Common Stock upon the conversion
of OP Units.
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.
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K. COMPLIANCE WITH LAWS. During the period when the Prospectus is required
to be delivered under the Act or the Exchange Act, the Company will (1) comply
with all provisions of the Act and the Rules and Regulations and (2) file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations of the Commission thereunder.
L. INVESTMENT COMPANY. The Company will take such steps as shall be
necessary to ensure that neither the Company nor the Operating Partnership shall
become an "investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations of the Commission
thereunder.
M. REPORTING USE OF PROCEEDS. The Company will file with the Commission
such reports as may be required pursuant to Rule 463 of the Rules and
Regulations.
N. NO STABILIZATION ACTIVITIES. Except for the authorization of actions
permitted to be taken by the Underwriters as contemplated herein or in the
Prospectus, neither the Company nor the Operating Partnership will (1) take,
directly or indirectly, any action designated to cause or to result in, or that
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Offered Securities; (2) sell, bid for or purchase the Offered Securities or pay
any person any compensation for soliciting purchases of the Offered Securities;
or (3) pay or agree to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
O. FRIENDS AND FAMILY PROGRAM. The Company will comply with all applicable
securities laws and other applicable laws, rules and regulations in each foreign
jurisdiction in which the Directed Shares are offered in connection with the
Friends and Family Program.
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,
dated the date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of KPMG LLP ("KPMG") confirming that they are an
independent registered public accounting firm within the meaning of the Act and
the applicable Rules and Regulations and stating to the effect that:
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(1) in their opinion the financial statements examined by them and
included in the Registration Statements comply as to form in all material
respects with the applicable requirements of the Act and the related Rules
and Regulations;
(2) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
100, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements (as hereinafter defined for the
purposes of this Section 5.A);
(3) on the basis of the review referred to in clause (2) 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 the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related Rules and Regulations or that any material modifications
should be made to such unaudited financial statements and summary of
earnings for them to be in conformity with GAAP;
(b) at the date of the latest available balance sheet read by
such accountants, and at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company or, at the date of the
latest available balance sheet read by such accountants, there was
any decrease in combined net assets, as compared with amounts shown
on the latest balance sheets included in the Prospectus; or
(c) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of the
previous year for the combined operations of the Company and with
the period of corresponding length ended the date of the latest
income statement included in the Prospectus, in combined total
revenues or combined net income.
except in all cases set forth in one of the above clauses for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(4) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company 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
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amounts, percentages and other financial information are derived from the
general accounting records of any entity for which KPMG provided an audit
of certain revenues and expenses) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall mean
the Initial Registration Statement and the Additional Registration Statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration Statements.
B. REGISTRATION STATEMENT EFFECTIVENESS. If the Effective Time of the
Initial Registration Statement is not prior to the execution and delivery of
this Agreement, such Effective Time shall have occurred not later than 10:00
p.m., New York time, on the date of this Agreement or such later date as shall
have been consented to by the Representative. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not later
than 10:00 p.m., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or shall
have occurred at such later date as shall have been consented to by the
Representative. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 4.A of this Agreement. Prior to the Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company, shall be contemplated by the Commission.
C. SUBSEQUENT EVENTS. Subsequent to the execution and delivery
of this Agreement, there shall not have occurred:
(1) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties,
earnings, results of operations or prospects of the Company and its
Subsidiaries taken as one enterprise, whether or not in the ordinary
course, which, individually or in the aggregate, in the sole judgment of
the Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities;
(2) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the sole judgment of the Representative, be likely to prejudice
materially the success of the
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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;
(2) Based on certificates from public officials, such counsel
confirms that the Operating Partnership is qualified to do business in the
following states: California, 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. Based on certificates
from public officials, each Material Subsidiary is validly existing and in
good standing under the laws of the state of its formation, and is duly
qualified or registered as a foreign limited partnership or limited
liability company, as applicable, and is in good standing in all
jurisdictions 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 dated __________, 2005 and
a review on such date of the operating agreements or agreements of limited
partnership of
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each Material Subsidiary, all of the partnership interests or limited
liability company interests of the Material Subsidiaries were owned of
record on such date by the Company or a wholly owned subsidiary of the
Company.
(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, 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 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
(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, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings
therefor have been initiated by the Commission. Any required filing of the
Prospectus pursuant to Rule 424 under the Act has been made in accordance
with Rule 424 under the Act;
(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 to be filed as exhibits to the Registration
Statement that are not described or filed;
(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
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agreement, and docket searches in the jurisdictions set forth on Schedule
VII, 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, as of the date it was declared
effective, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements for registration statements on
Form S-11 under the Act and the Rules and Regulations; it being
understood, however, that such counsel need express no opinion with
respect to Regulation S-T or the financial statements, schedules, or other
financial data, included in, or omitted from, the Registration Statement
or Prospectus. Solely for purposes of passing upon the compliance as to
form of the Registration Statement and the Prospectus, such counsel may
assume that the statements made therein are correct and complete;
(10) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Liquidity and Capital Resources," "Certain Relationships
and Related Transactions - Formation Transactions and Contribution of
Properties," "-Contribution Agreements," "Shares Eligible for Future
Sale," and "ERISA Considerations," insofar as they purport to describe or
summarize certain provisions of the agreements, statutes, regulations or
the subject legal proceedings referred to therein, are accurate
descriptions or summaries in all material respects; and
(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.
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 or the Prospectus,
(except to the extent expressly set forth in the numbered paragraphs 7 and
10
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of such counsel's opinion letter to the Representative of even date), and
have not made an independent check or verification thereof (except as
aforesaid). However, in the course of acting as counsel to the Company in
connection with the preparation by the Company of the Registration
Statement and Prospectus, such counsel reviewed the Registration
Statement, and the Prospectus, and participated in conferences and
telephone conversations with officers and other representatives of the
Company, the independent registered public accounting firm for the
Company, representatives of the Underwriters, and counsel to the
Underwriters, during which conferences and conversations the contents of
the Registration Statement and the Prospectus 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 the
Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date or as of the date
of the opinion, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel expresses
no belief with respect to the financial statements, schedules, or other
financial data included in, or omitted from, the Registration Statement or
the Prospectus.
E. TAX OPINION. The Representative shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxxxx LLP, special tax counsel for the Company,
to the effect that:
(1) 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.
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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 as described in the
Prospectus under the caption "Business and Properties," 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 "Business and Properties," and to enter into and perform its
obligations under this Agreement.
(3) BioMed Realty Holdings, Inc. is a corporation duly incorporated
and existing under and by virtue of the laws of the State of Maryland and
is in good standing with the SDAT.
(4) The 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,
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in all material respects, to the description thereof contained in the
Prospectus. The issuance of the Offered Securities by the Company is not
subject to preemptive or other similar rights arising under the MGCL, the
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 thereto. The
Operating Partnership Agreement constitutes the legal, valid, and binding
obligation of each Transaction Entity that is a party thereto, enforceable
against each Transaction Entity that is a party thereto in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity and, with respect to
equitable relief, the discretion of the court before which any proceeding
therefor may be brought (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(9) The information in the Prospectus under the captions "Risk
Factors -- Risks Related to Our Organizational Structure," "Policies with
Respect to Certain Activities," "Description of Securities," "Certain
Provisions of Maryland Law and of Our Charter and Bylaws" and "Description
of the Partnership Agreement of BioMed Realty, L.P.," as of the date of
the Prospectus, insofar as such information relates to provisions of
Maryland law or the Company's or the Operating Partnership's
organizational documents, fairly summarizes such provisions of Maryland
law or the Company's or the Operating Partnership's organizational
documents, in all material respects.
(10) The execution, delivery and performance of this Agreement and
the transactions contemplated thereby and the sale and issuance of the
Offered Securities do not require any consents, approvals, authorizations,
or orders to be obtained by any such Transaction Entities, or any
registrations, declarations, or filings to be made by such Transaction
Entities, in each case, under any Maryland statute, rule, or regulation
applicable to the Transaction Entities that have not been obtained or
made.
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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; and
(4) the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter.
I. ACCOUNTANT'S LETTER. The Representative shall have received a letter,
dated such Closing Date, of KPMG LLP which meets the requirements of Section
5.A, except that the specified date referred to in such subsection will be a
date not more than three days prior to such Closing Date for the purposes of
this subsection.
J. LOCK-UP AGREEMENTS. On or prior to the date of this Agreement, the
Representative shall have received executed Lock-Up Agreements from each of the
Key Officers.
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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, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such loss, claim, damage, liability, action or
expense as such expenses are incurred; provided, however, that the Transaction
Entities will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative
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specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 6.B below; provided further that with respect to any untrue
statement or omission of material fact made in any preliminary Prospectus, the
indemnity agreement contained in this Section 6.A shall not inure to the benefit
of any Underwriter from whom the person asserting any such loss, claim, damage
or liability purchased the Offered Securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstances where it shall have been determined by a court of competent
jurisdiction by final and non-appealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representative, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the Prospectus.
The Transaction Entities, jointly and severally, further agree to
indemnify and hold harmless the Representative, its partners, members,
directors, officers, employees and agents, and each person, if any, who controls
the Representative within the meaning of the Act or the Exchange Act against any
and all losses, claims, damages, expenses and liabilities, joint and 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 (i) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any material prepared by or with the consent of the
Transaction Entities for distribution to Participants in connection with the
Friends and Family Program or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) arising out of
or based upon the failure of any Participant to pay for and accept delivery of
Directed Shares that such Participant agreed to purchase pursuant to the Friends
and Family Program, and (iii) related to, arising out of, or in connection with
the Friends and Family Program, other than losses, claims, damages or
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of the
Representative.
B. Each Underwriter severally and not jointly will indemnify and hold
harmless each Transaction Entity, each of its directors and officers who signs
the Registration Statement or who consents to being named as a director upon the
First Closing Date and each person, if any who controls the Company within the
meaning of the Act or the Exchange Act, against any losses, claims, damages,
liabilities or expenses to which any of them may become subject, under the Act
to which they may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation or at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses
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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 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
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Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses as well as any
other relevant equitable considerations. The relative benefits received by the
Transaction Entities on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Transaction Entities bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Transaction Entities or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the first sentence of this Section 6.D shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 6.D. Notwithstanding the provisions of this Section 6.D, no Underwriter
(except as may be provided in any agreement among underwriters relating to the
offering of the Offered Securities) shall be required to contribute any amount
in excess of the underwriting discount or commission applicable to the Offered
Securities purchased by such Underwriter hereunder. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section 6.D
to contribute are several in proportion to their respective underwriting
obligations and not joint. The Transaction Entities and the Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or another method of allocation that does not take account of
the equitable considerations referred to above.
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
-35-
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of shares of Offered Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the
Representative and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 7 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "UNDERWRITER" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
8. EXPENSES. Whether or not the transactions contemplated hereby are consummated
or this Agreement is terminated, the Company agrees to pay or cause to be paid
the following: (1) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the Act
and all other filing fees, other fees and expenses in connection with the
preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Preliminary Prospectus to the Underwriters and
dealers; (2) the printing and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Preliminary Prospectus, any Blue Sky memoranda,
this Agreement and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares; (3) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws or Blue Sky laws, including
reasonable attorneys' fees and out-of-pocket expenses of the counsel for the
Underwriters in connection therewith; (4) the filing fees incident to securing
any required review by the NASD of the fairness of the terms of the sale of the
Shares and the reasonable fees and disbursements of the Underwriters' counsel
relating thereto; (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 Shares to
the respective Underwriters; (9) all other fees, costs and expenses referred to
in Item 31 of the Registration Statement; (10) the transportation, lodging,
graphics and other expenses incidental to the Company's preparation for and
participation in the "roadshow" for the offering contemplated hereby and (11)
payments to counsel for costs incurred by the Underwriters in connection with
the Friends and Family Program and payment of any stamp duties, similar taxes or
duties or other taxes, if any, incurred by the Underwriters in connection with
the Friends and Family Program. Except as provided in this Section 8 and in
Section 7 hereof, the Underwriters shall pay their own expenses, including the
fees and disbursements of their counsel.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Transaction Entities or its respective officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Transaction Entities or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not
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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
Entity, will be mailed, delivered or telegraphed and confirmed to the Company,
Attention: General Counsel with a copy to Xxxxxx & Xxxxxxx LLP, Attention: Xxxxx
X. Xxxxxx, Esq.; provided, however, that any notice to an Underwriter pursuant
to Section 6 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person
will have any right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
14. APPLICABLE LAW AND VENUE. This agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida, without regard to
principles of 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' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
BIOMED REALTY TRUST, INC.
By: ______________________________________
Name: Xxxx X. Gold
Title: Chief Executive Officer
BIOMED REALTY, L.P.
By: BioMed Realty Trust, Inc., its general partner
By: ______________________________________
Name: Xxxx X. Gold
Title: Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: ______________________________________
Name:
Title:
Acting on behalf of itself and as the Representative of the several
Underwriters.
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SCHEDULE I
UNDERWRITERS
Number of Firm
Name of Underwriter Securities
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx & Associates, Inc.........................
KeyBanc Capital Markets, a division of McDonald ........
Investments Inc. .......................................
Wachovia Capital Markets, LLC ..........................
Friedman, Billings, Xxxxxx & Co., Inc. .................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ...................
RBC Capital Markets Corporation ........................
------------------
Total
==================
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SCHEDULE II
SUBSIDIARIES
-40-
SCHEDULE III
KEY OFFICERS
Xxxx X. Gold
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxx, XX
Xxxxxxx X. XxXxxxxx
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SCHEDULE IV
TITLE REPORTS
-42-
SCHEDULE V
MORTGAGES
-43-
SCHEDULE VI
TENANT ESTOPPEL CERTIFICATES
-44-
SCHEDULE VII
LIST OF JURISDICTIONS DESCRIBED
IN SECTION 5.D(8)
[to come]
-45-
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
_________ __, 2005
BIOMED REALTY TRUST, INC.
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representative of the Several Underwriters listed on Schedule I to the
Underwriting Agreement
c/o Raymond Xxxxx &Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
The undersigned understands that Xxxxxxx Xxxxx & Associates, Inc.
(the "Representative") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement"), as representative of the several underwriters listed
on Schedule I thereto (the "Underwriters"), with BioMed Realty Trust, Inc., a
Maryland corporation (the "Company"), and BioMed Realty, L.P., a Maryland
limited partnership (the "Partnership"). Upon the terms and subject to the
conditions of the Underwriting Agreement, the Underwriters intend to effect a
public offering (the "Public Offering") of shares (the "Shares") of common
stock, $0.01 par value per share, of the Company (the "Common Stock").
To induce the Representative to execute the Underwriting Agreement
and to induce the Underwriters to continue their efforts in connection with the
Public Offering, the undersigned hereby agrees that, without the prior written
consent of the Representative, he or she will not, during the period commencing
on the date hereof and ending on the 90th day after the date of the final
prospectus relating to the Public Offering (such period, the "Lock-Up Period"
and such prospectus, the "Prospectus"), (1) offer, pledge, sell, loan, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any of the following (whether
now owned by the undersigned or hereafter acquired): (i) Common Stock; (ii) any
securities convertible into or exercisable, exchangeable or redeemable for any
shares of Common Stock, including, without limitation, the units of the
Partnership (the "Units"); or (iii) any rights to purchase or otherwise acquire
Common Stock or Units held by the undersigned or acquired by the undersigned
after the date hereof, or that may be deemed to be beneficially owned by the
undersigned; or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock or Units, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or Units or such other
securities, in cash or otherwise, other than the pledge of Units in existence as
of the date hereof. The undersigned further agrees that the undersigned will not
publicly disclose the intention to make any such offer, sale, pledge,
-46-
redemption or disposition or to enter into any transaction described in the
preceding sentence during the Lock-Up Period without, in each case, the prior
written consent of the Representative. In addition, the undersigned agrees that,
without prior written consent of the Representative, the undersigned will not,
during the Lock-Up Period, make any demand for or exercise any right with
respect to, the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Notwithstanding the foregoing, if (x) during the last 17 days of the
Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (y) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-Up Period; the
restrictions imposed in this Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event; provided,
however, that this sentence shall not apply if, within 3 days of the termination
of the Lock-Up Period, the Chief Executive Officer or the Chief Financial
Officer of the Company delivers to the Representative a certificate, certifying
on behalf of the Company that the Company's securities are, as of the date of
delivery of such certificate, "actively traded" as defined in Rule 101(c)(1) of
Regulation M of the Securities Exchange Act of 1934, as amended.
Any Common Stock received upon the exercise of options or redemption
of Partnership Units granted to or held by the undersigned will also be subject
to this letter.
Notwithstanding the foregoing, this letter does not restrict the
undersigned from transferring the Company's securities or interests therein (i)
as a bona fide gift or gifts or (ii) to any trust the beneficiaries of which are
exclusively the undersigned or a member of the immediate family of the
undersigned, including grandchildren (to the extent consistent with the
Securities Act and state securities laws), provided that prior to and as a
condition to the effectiveness of any such distribution or transfer, the
transferee executes a lock-up agreement substantially in the form hereof in
favor of the Representative.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer that would
constitute a violation or breach of this letter. This letter shall be binding on
the undersigned and the respective successors, heirs, personal representatives
and assigns of the undersigned.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
agreement between the Company and the Representative. The terms of this letter
shall expire in the event the Public Offering is not consummated on or before
September 30, 2005.
Very truly yours,
By: ___________________________
___________________________
(Printed or Typed Name)
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