BIOMED REALTY TRUST, INC. 7,500,000 Shares Common Stock ($0.01 par value per Share) Underwriting Agreement
Exhibit 1.1
BIOMED REALTY TRUST, INC.
7,500,000 Shares
Common Stock
($0.01 par value per Share)
($0.01 par value per Share)
October 1, 2008
October 1, 2008
UBS Securities LLC
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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 you (the “Underwriter”) with respect to the issuance and sale by
the Company to the Underwriter, an aggregate of 7,500,000 shares (the “Firm
Shares”) of common stock, $0.01 par value per share (the “Common
Stock”), of the Company. In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriter the option to purchase from the Company up to an
additional 1,125,000 shares of Common Stock (the “Additional Shares”). The Firm
Shares and the Additional Shares are hereinafter collectively sometimes referred to as the
“Shares.” The Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
“Act”), with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-137376) under
the Act (the “registration statement”), including a prospectus, which
registration statement incorporates by reference documents which the Company has filed, or will
file, in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the “Exchange Act”). Such
registration statement has become effective under the Act.
Except where the context otherwise requires, “Registration Statement,” as
used herein, means the registration statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the
Underwriter (the “Effective Time”), including (i) all documents filed as a part
thereof or incorporated or deemed to be incorporated by reference therein, (ii) any information
contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule
424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under
the Act. The Registration Statement at the time it originally became effective is herein called the
“Original Registration Statement.”
Except where the context otherwise requires, “Basic Prospectus,” as used
herein, means the basic prospectus in the form in which it appeared in the Registration Statement
as of October 1, 2008.
Except where the context otherwise requires, “Prospectus Supplement,” as
used herein, means the final prospectus supplement, relating to the Shares, filed by the Company
with the Commission pursuant to Rule 424(b) under the Act on or before the second business day
after the date hereof (or such earlier time as may be required under the Act), in the form
furnished by the Company to you for use by the Underwriter and by dealers in connection with the
offering of the Shares.
Except where the context otherwise requires, “Prospectus,” as used herein,
means the Prospectus Supplement together with the Basic Prospectus attached to or used with the
Prospectus Supplement.
“Permitted Free Writing Prospectuses,” as used herein, means the documents
listed on Schedule A attached hereto and each “road show” (as defined in Rule
433 under the Act), if any, related to the offering of the Shares contemplated hereby that is a
“written communication” (as defined in Rule 405 under the Act). The Underwriter
has not offered or sold and will not offer or sell, without the Company’s consent, any Shares by
means of any “free writing prospectus” (as defined in Rule 405 under the Act)
that is required to be filed by the Underwriter with the Commission pursuant to Rule 433 under the
Act, other than a Permitted Free Writing Prospectus.
“Covered Free Writing Prospectuses,” as used herein, means (i) each
“issuer free writing prospectus” (as defined in Rule 433(h)(1) under the Act),
if any, relating to the Shares, which is not a Permitted Free Writing Prospectus and (ii) each
Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means the Basic Prospectus, together
with any combination of one or more of the Permitted Free Writing Prospectuses, if any.
“Applicable Time” means 8:30 a.m. (Eastern time) on October 1, 2008 or such
other time as agreed by the Company and the Representative.
Any reference herein to the registration statement, the Registration Statement, any Basic
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration
Statement, any Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the filing of any document under the
Exchange Act on or after the initial effective date of the Registration Statement, or the date of
such Basic Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing
Prospectus, as the case may be, and deemed to be incorporated therein by reference.
As used in this Agreement, “business day” shall mean a day on which the New
York Stock Exchange (the “NYSE”) is open for trading. The terms
“herein,” “hereof,” “hereto,”
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“hereinafter” and similar terms, as used in this Agreement, shall in each case
refer to this Agreement as a whole and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used herein, is not exclusive.
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
Underwriter and the Underwriter agrees to purchase from the Company the Firm Shares, at a purchase
price of $24.66 per Share. The Company is advised by you that the Underwriter intends (i) to make
a public offering of the Firm Shares as soon after the effectiveness of this Agreement as in your
judgment is advisable and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering price after the
initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the Underwriter the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the Underwriter shall have
the right to purchase from the Company all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriter to the Company for the Firm Shares. The
Over-Allotment Option may be exercised by UBS Securities LLC (“UBS”) at any time
and from time to time on or before the thirtieth day following the date of the Prospectus
Supplement, by written notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the Over-Allotment Option is being exercised and the date and time
when the Additional Shares are to be delivered (any such date and time being herein referred to as
an “additional time of purchase”); provided, however, that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the second business day after the date on which the Over-Allotment
Option shall have been exercised nor later than the tenth business day after the date on which the
Over-Allotment Option shall have been exercised.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company
(“DTC”) for the account of the Underwriter. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on October 6, 2008 (unless another time shall be agreed to
by you and the Company). The time at which such payment and delivery are to be made is hereinafter
sometimes called the “time of purchase.” Electronic transfer of the Firm Shares
shall be made to you at the time of purchase in such names and in such denominations as you shall
specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office and time of day as the payment for the Firm
Shares. Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of DLA Piper LLP (US) at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx Xxxxxxxx 00000, at 9:00 A.M., New York City time, on the
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date of the closing of the purchase of the Firm Shares or the Additional Shares, as the case may
be.
3. Representations and Warranties of the Transaction Entities. Each of the
Transaction Entities, jointly and severally, represents and warrants to, and agrees with, the
Underwriter as of the date hereof, the Applicable Time (as defined above), and the time of purchase
and each additional time of purchase, if any, that:
(a) Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Act;
No Misleading Statements; Conformity with XXXXX filings.
(1) (A) At the time of filing the Original Registration Statement, (B) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of Rule
163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of
Rule 163 under the Act and (C) at the date hereof, the Company (x) was and is a
“well-known seasoned issuer” as defined in Rule 405 under the Act
(“Rule 405”) and (y) was not and is not an “ineligible
issuer,” as defined in Rule 405. The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405, and the Shares, since their
registration on the Registration Statement, have been and remain eligible for registration by
the Company on a Rule 405 “automatic shelf registration statement”. The
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the
Act objecting to the use of the automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time thereafter
that the Company or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act of the Shares and at the date hereof, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405.
(2) The Original Registration Statement became effective upon filing under Rule 462(e)
under the Act (“Rule 462(e)”) on September 15, 2006, and any post-effective
amendment thereto also became effective upon filing under Rule 462(e).
Any offer that is a written communication relating to the Shares made prior to the filing
of the Original Registration Statement by the Company or any person acting on its behalf
(within the meaning, for this paragraph only, of Rule 163(c) under the Act) has been filed with
the Commission in accordance with the exemption provided by Rule 163 under the Act
(“Rule 163”) and otherwise complied with the requirements of Rule 163,
including without limitation the legending requirement, to qualify such offer for the exemption
from Section 5(c) of the Act provided by Rule 163.
At the respective times the Original Registration Statement, any Registration Statement
and any amendment thereto became effective, at the deemed effective date with respect to the
Underwriter pursuant to Rule 430B(f)(2) under the Act, at the date of this Agreement and at the
time of purchase and each additional time of purchase, if any, the Registration Statement and
any amendments or supplements thereto complied and will comply, in all material respects with
the requirements of the Act and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be
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stated therein or necessary to make the statements therein not misleading; the Prospectus and
any further amendments or supplements thereto, at the time the Prospectus or such amendment or
supplement was issued, at the date hereof, at the time of filing pursuant to Rule 424(b) and at
the time of purchase and each additional time of purchase, if any, complied and will comply, in
all material respects with the requirements of the Act and did not, and any amendment thereto
will not, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the prospectus filed as part of
the Original Registration Statement as originally filed or as part of any amendment or
supplement thereto or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act;
(3) As of the Applicable Time, the time of purchase and each additional time of purchase,
if any, the Disclosure Package did not and will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Each Permitted Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares or until any earlier date that
the Issuer notified or notifies the Underwriter as described in Section 4(i), did not, does not and
will not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to be a part thereof that has not
been superseded or modified.
The representations and warranties in subsections (2) and (3) above shall not apply to
statements in or omissions from the Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus made in reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use therein.
(4) Each Prospectus delivered to the Underwriter 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.
(b) No Stop Order. No stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that purpose has been instituted or, to the
knowledge of either of the Transaction Entities, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued, and no proceeding for that purpose has been instituted or, to the
knowledge of either of the Transaction Entities, threatened by the Commission or by the state
securities authority of any jurisdiction.
(c) Incorporated Documents. Each Incorporated Document, when such
Incorporated Document was filed with the Commission, complied in all material respects with
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the requirements of the Act or the Exchange Act, as applicable, in effect at the time of the
filing, and, when read together with the other information in the Prospectus, (i) at the time the
Original Registration Statement became effective, (ii) at the earlier of the time the Prospectus
was first used and the date and time of the first contract of sale of Shares in this offering, and
(iii) at the time of purchase and each additional time of purchase, if any, each such Incorporated
Document did not or will not, as the case may be, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(d) Company Formation; Good Standing; Qualification. The Company has been duly formed and is
validly existing as a corporation in good standing under the laws of the state of Maryland, with
power and authority (corporate and other) to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations under this Agreement and
as general partner of the Operating Partnership to cause the Operating Partnership to enter into
and perform the Operating Partnership’s obligations under this Agreement, and the Company is duly
qualified to do business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the condition (financial or other),
business, earnings, properties, assets, results of operations or prospects of the Transaction
Entities and the Subsidiaries (as defined below) taken as a whole, whether or not in the ordinary
course (“Material Adverse Effect”).
(e) Operating Partnership Formation; Good Standing; Qualification; Interests in Operating
Partnership. The Operating Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the state of Maryland, is duly qualified to do
business and is in good standing as a foreign limited partnership in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such qualification, except
where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect,
and has all power and authority necessary to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations under this Agreement. The
Company is the sole general partner of the Operating Partnership and holds the number and/or
percentage of units of limited partnership interest in the Operating Partnership (“OP
Units”) as disclosed in the Prospectus, as of the dates set forth therein, free and clear
of any security interests, liens, mortgages, encumbrances, pledges, claims, defects or other
restrictions of any kind (collectively, “Liens”). The Fourth Amended and
Restated Agreement of Limited Partnership of the Operating Partnership, as amended (the
“Operating Partnership Agreement”) is in full force and effect. The aggregate
percentage interests of the Company and the limited partners in the Operating Partnership are as
set forth in the Prospectus, as of the dates set forth therein; provided, that to the
extent any portion of the over-allotment option described in Section 1 hereof is exercised at any
additional time of purchase, the percentage interest of the Company and of such limited partners in
the Operating Partnership will be adjusted accordingly.
(f) Subsidiary Formation; Good Standing; Qualification; Liens; Pre-Emptive Rights. Each direct
or indirect subsidiary of the Company and of the Operating Partnership, all of which are listed on
Schedule B hereto (each, a “Subsidiary” and together the
“Subsidiaries”),
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has been duly formed and is validly existing as a corporation, limited partnership, limited
liability company or common law trust, as the case may be, in good standing under the laws of the
jurisdiction of its organization, with power and authority (corporate and other) to own its assets
and conduct its business as described in the Prospectus and to enter into and to perform its
obligations under this Agreement; and is duly qualified to do business as a foreign corporation,
limited partnership or limited liability company, as the case may be, in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to so qualify would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; all of its issued and
outstanding capital stock or other ownership interests have been duly authorized and validly issued
and are fully paid and non-assessable; and all outstanding shares of its capital stock or other
ownership interests are owned by the Company or the Operating Partnership, directly or through the
Subsidiaries, free and clear of any Liens, except as described in the Prospectus or where such
Liens would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. None of the equity interests of any Subsidiary were issued in violation of the
preemptive or other similar rights of any securityholder of such Subsidiary. There are no
outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for
equity interests or other securities of any Subsidiary, except as set forth in the organizational
documents of such Subsidiary.
(g) Capital of the Company; Options; No Preemptive Rights. The authorized, issued and
outstanding capital stock of the Company is in all material respects as set forth in the Prospectus
in the column entitled “Historical Consolidated” under the caption
“Capitalization.” None of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any securityholder of the
Company. Except as disclosed in the Prospectus, (i) no shares of Common Stock are reserved for any
purpose; (ii) there are no outstanding securities convertible into or exchangeable for any shares
of Common Stock; and (iii) except in connection with our investment in one of our joint ventures,
pursuant to which the the joint venture party has the right to require the Operating Partnership to
issue OP Units in connection with a put call option, which represent less than 1% of the Company’s
currently outstanding Common Stock, there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or subscribe for shares of Common Stock or any other securities
of the Company or of the Operating Partnership.
(h) Authorization of Issuance of Shares; Conformity with Applicable Laws. The Shares 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 Shares have been delivered and paid for
in accordance with this Agreement at the time of purchase and each additional time of purchase, if
any, such Shares 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 Shares in accordance herewith, the Underwriter
will receive good valid and marketable title to the Shares, free and clear of all Liens. The form
of the certificates to be used to evidence the Shares will be in substantially the form filed or
incorporated by reference as an exhibit to the Registration Statement, is in due and proper form
and complies with all applicable legal
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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 and Series A preferred units of limited partnership
interest in the Operating Partnership have been duly authorized for issuance by the Operating
Partnership to the holders thereof and are validly issued, fully paid and non-assessable, have been
offered and sold or exchanged by the Operating Partnership in compliance with applicable laws and
conform in all material respects to the description thereof contained in the Prospectus. The OP
Units to be issued to the Company in connection with the offering contemplated by this Agreement
have been duly authorized for issuance by the Operating Partnership and, when issued and delivered
by the Operating Partnership to the Company in connection with the contribution of the net proceeds
of the offering, will be validly issued, fully paid and non-assessable. The OP Units will be exempt
from registration or qualification under the Act and applicable state securities laws. None of the
OP Units will be subject to or issued in violation of the preemptive or other similar rights of any
securityholder of the Operating Partnership.
(j) No Other Brokerage Fees. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Transaction Entities, any Subsidiary and any person that
would give rise to a valid claim against the Transaction Entities, any Subsidiary, or the
Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this
offering.
(k) No Registration Rights. Except for the Registration Rights Agreements entered into in
connection with the Company’s initial public offering by and among the Company, the Operating
Partnership and the holders of OP Units party thereto dated as of August 13, 2004, as amended (the
“Unitholder Registration Rights Agreements”), the Registration Rights Agreement
entered into in connection with the issuance of the Operating Partnership’s $175 million principal
amount of 4.50% Exchangeable Senior Notes due 2026 (the “Exchangeable Notes”) by
and among the Company and the initial purchasers of the Exchangeable Notes dated as of September
25, 2006 (the “Notes Registration Rights Agreement”) and the Registration Rights
Agreement entered into in connection with the formation of BMR-PR II LLC by and between the Company
and the Prudential Insurance Company of America dated as of April 4, 2007 (the “JV
Registration Rights Agreement”), there are no contracts, agreements or understandings
between the Transaction Entities and any person granting such person the right to require the
Transaction Entities to file a registration statement under the Act with respect to any securities
of the Transaction Entities owned or to be owned by such person. There are no contracts, agreements
or understandings between the Transaction Entities and any person granting such person the right to
require the Transaction Entities to include such securities in the securities registered pursuant
to the Registration Statement.
(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
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which such Transaction Entity or a Subsidiary is landlord or otherwise), ground lease or air space
lease (under which such Transaction Entity or a Subsidiary is tenant), development agreement,
reciprocal easement agreement, deed restriction, hotel management agreement, parking management
agreements, or other agreement or instrument to which it is a party or by which it or any of them
is a party or may be bound, or to which any of the Properties (as hereinafter defined) or any of
its property or assets of such Transaction Entity or Subsidiary is subject (collectively,
“Agreements or Instruments”), or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or the Properties or any of its other
properties or assets may be subject, except for such defaults or violations that would not have,
individually or in the aggregate, a Material Adverse Effect.
(m) No Consents Required. No consent, approval, authorization, or order of, or filing or
registration with, any governmental agency or body or any court or any third party is required for
the consummation of the transactions contemplated by this Agreement, except as have been obtained
or made under the Act and as may be required under state securities laws or the rules of The
Financial Industry Regulatory Authority (“FINRA”) or that the absence of which
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(n) Non-Contravention. Except as disclosed in the Prospectus, the execution, delivery and
performance of this Agreement by the Transaction Entities and the consummation of the transactions
contemplated hereby (including the issuance and sale of the Shares and the use of the proceeds from
the sale of the Shares as described in the Prospectus under “Use of Proceeds”)
do not and will not (whether with or without the giving of notice or passage of time or both)
conflict with or result in a breach or violation of any of the terms and provisions of, or
constitute a default (or give rise to any right of termination, acceleration, cancellation,
repurchase or redemption) or Repayment Event (as hereinafter defined) under, or result in the
creation or imposition of a Lien upon any property or assets of the Transaction Entities or any
Subsidiary pursuant to, (i) any statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the Transaction Entities or any
of the Subsidiaries or any of their properties, assets or business currently owned by them; (ii)
any term, condition or provision of any Agreements or Instruments; or (iii) the charters, by-laws
or other organizational documents, as applicable, of the Transaction Entities or any of the
Subsidiaries, except for such conflicts, breaches, violations or defaults that (with respect to
subclauses (i) and (ii) above) would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. As used herein, “Repayment Event” means
any event or condition which, without regard to compliance with any notice or other procedural
requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company, the Operating Partnership or any
Subsidiary.
(o) Validity and Sufficiency of Agreements. This Agreement 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, the Lock-Up Agreements have been duly and validly
authorized, executed and delivered by each other party thereto, 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
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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 time of purchase, the lock up agreements in the form attached hereto as Exhibit A by
each of the persons listed on Exhibit A-1 hereto.
(p) Licenses. The Transaction Entities and the Subsidiaries possess adequate certificates,
authorities, licenses, consents, approvals, permits and other authorizations
(“Licenses”) issued by appropriate governmental agencies or bodies or third
parties necessary to conduct the business now operated by them, have maintained such Licenses in
full force and effect, and have not received any notice of proceedings relating to the revocation
or modification of any such Licenses that, if determined adversely to the Transaction Entities or
any of the Subsidiaries, would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. The Transaction Entities and the Subsidiaries are in compliance with the
terms and conditions of all such Licenses except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(q) Financial Statements. The financial statements included in or incorporated by reference
into the Registration Statement, the Prospectus and the Disclosure Package, together with the
related schedules and notes, present fairly (1) the financial position of the Company and its
consolidated Subsidiaries (and the combined financial position of any predecessor entities) at the
dates indicated; and (2) the results of operations, stockholders’ equity and cash flows of the
Company and its consolidated Subsidiaries (and the combined results of operations, stockholders’
equity, and cash flows of any predecessor entities) for the periods specified; 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 the combined
financial position of any predecessor entities) and the results of operations, stockholders’ equity
and cash flows of the Company and its consolidated Subsidiaries (and the combined results of
operations, stockholders’ equity, and cash flows of any predecessor entities). The supporting
schedules incorporated by reference into the Registration Statement, the Prospectus and Disclosure
Package present fairly in accordance with GAAP the information required to be stated therein. All
non-GAAP financial measures included in or incorporated by reference into the Registration
Statement, the Prospectus and the Disclosure Package comply with the requirements of Regulation G
and Item 10 of Regulation S-K under the Act to the extent
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such rules are applicable to such financial statements. Other than the historical financial
statements, and schedules relating thereto included in or incorporated by reference into the
Registration Statement, the Prospectus and the Disclosure Package, no other historical or pro forma
financial statements (or schedules) are required by the Act to be included therein or in any
document required to be filed with the Commission under the Exchange Act.
(r) Independent Registered Public Accounting Firm. The accountants who certified the financial
statements and supporting schedules included in or incorporated by reference into the Registration
Statement and delivered the initial letter referred to in Section 6(c) hereof, are an independent
registered public accounting firm as required by the Act, the Exchange Act, and the Public Company
Accounting Oversight Board (United States).
(s) REIT Status. Commencing with the taxable year ending December 31, 2004, the Company has
been and is organized and operated in conformity with the requirements for qualification and
taxation as a real estate investment trust (a “REIT”) under the Internal Revenue
Code 1986, as amended (the “Code”).
(t) Tax Returns and Matters. The Transaction Entities and each of the Subsidiaries (including
any predecessor entities) have filed all foreign, federal, state and local tax returns that are
required to be filed or have requested extensions thereof (except in any case in which the failure
so to file would not reasonably be expected to have a Material Adverse Effect) and have paid all
taxes required to be paid by them and any other assessment, fine or penalty levied against them, to
the extent that any of the foregoing is due and payable, except for any such assessment, fine or
penalty that (i) would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (ii) as described in or contemplated by the Prospectus. Except as
disclosed in the Prospectus, there is no pending or, to the knowledge of the Transaction Entities,
threatened special assessment, tax reduction proceeding or other action which could increase or
decrease the real property taxes or assessments of any Property, which would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(u) No Other Offering Documents or Prospectuses. The Transaction Entities and each of the
Subsidiaries have not distributed, and prior to the later of the time of purchase and the
completion of the distribution of the Shares, will not distribute, any offering material in
connection with the offering or sale of the Shares other than the Registration Statement, the
Prospectus, the Disclosure Package or any other materials, if any, permitted by the Act (which were
disclosed to the Representative and its counsel).
(v) ERISA Matters.
(1) Each Transaction Entity is in compliance, in all material respects, with all
presently applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
(“ERISA”); no “reportable event” (as defined in ERISA
other than an event for which the notice requirements have been waived by regulations) has
occurred with respect to any “pension plan” (as defined in ERISA) for
which any Transaction Entity would have any liability; no Transaction Entity has incurred
or expects to incur liability under (i)
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Title IV of ERISA with respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Code including the regulations and published
interpretations thereunder; and each “pension plan” for which any Transaction
Entity would have any liability that is intended to be qualified under Section 401(a) of the
Code has received a favorable determination letter from the Internal Revenue Service that such
plan is so qualified in all material respects and, except to the knowledge of the Transaction
Entities, nothing has occurred, whether by action or by failure to act, which would cause the
loss of such qualification, except where such non-compliance, reportable events, liabilities or
failure to be so qualified would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(2) The assets of the Transactions Entities and the Subsidiaries do not constitute
“plan assets” of an ERISA regulated employee benefit plan.
(3) The Company is a “real estate operating company” as such term is
defined in paragraph (e) of the plan assets regulation in 29 C.F.R. Section 2510.3-101, or will
be an “operating company” as defined in the first sentence of paragraph (c)
thereof.
(w) Property Matters.
(1) The Transaction Entities or the Subsidiaries have good and marketable title (either in
fee simple or pursuant to a leasehold interest) to all of the properties owned or leased by them
(the “Properties”), in each case, free and clear of all Liens except such as
(i) are disclosed in the Prospectus; or (ii) would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Any real property, improvements,
equipment and personal property held under lease by the Company or any Subsidiary are held under
valid, existing and enforceable leases which are in full force and effect, and none of the
Company, Operating Partnership nor any Subsidiary or, to any Transaction Entity’s knowledge, any
other party, is in default under any such lease, with such exceptions as are disclosed in the
Prospectus or would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect;
(2) All of the leases and subleases under which the Company, Operating Partnership or any
Subsidiary lease any portion of the Properties are in full force and effect; there are no
uncured events of default, or events that with the giving of notice or passage of time, or both,
would constitute an event of default, by any Transaction Entity nor any tenant under any of the
terms and provisions of the leases described above; and none of the Company, Operating
Partnership nor any Subsidiary has received any notice of any claim asserted by anyone adverse
to the rights of the Company, Operating Partnership or Subsidiary under any of the leases or
questioning or affecting the rights of the tenant of the continued possession of the leased or
subleased premises under any such lease or sublease, in each case other than those that would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
or that have been, in the reasonable judgment of the Company, adequately reserved for in the
Company’s consolidated financial statements included in the Prospectus. No tenant which has been
specifically identified in the Prospectus under any of the leases at the Properties has a right
of first refusal to purchase the premises demised under such lease, other than those
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which are disclosed in the Prospectus or with respect to properties the value of which are
not material to the Transaction Entities and the Subsidiaries taken as a whole;
(3) Except as disclosed in the Prospectus, none of the Transaction Entities, nor any
Subsidiary, knows of any violation of any municipal, state or federal law, rule or
regulation (including those pertaining to environmental matters) concerning the Properties
or any part thereof which would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(4) Each of the Properties complies with all applicable zoning laws, ordinances,
regulations, and deed restrictions or other covenants in all material respects and, if and
to the extent there is a failure to comply, such failure would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect;
(5) None of the Transaction Entities, nor any Subsidiary, has received from any
governmental authority any written notice of any condemnation of or zoning change affecting
the Properties or any part thereof, and none of the Transaction Entities nor any Subsidiary
or predecessor entity knows of any such condemnation or zoning change that is threatened
against any of the Properties and that, if consummated, would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect;
(6) Each of the Properties is free of material structural defects and all building
systems contained therein are in good working order in all material respects, subject to
ordinary wear and tear, except as would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; and
(7) Water, stormwater, sanitary sewer, electricity and telephone service are all
available at the property lines of each Property over duly dedicated streets or perpetual
easements of record benefiting the applicable Property, except as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) No Participating Interests. The mortgages and deeds of trust encumbering the Properties
and assets described in the Prospectus are not convertible, and neither the Transaction Entities,
any of the Subsidiaries, nor any person affiliated therewith holds a participating interest
therein, and such mortgages and deeds of trust are not cross-defaulted or cross-collateralized to
any property not owned directly or indirectly by the Transaction Entities or any of the
Subsidiaries.
(y) Insurance. The Operating Partnership and any Subsidiary that owns, or leases under ground
leases, real property has obtained title insurance on the fee interests (or leasehold interests) in
each of the Properties (other than one of the parcels at One Research Way) and other insurance
covering such risks and in amounts that are commercially reasonable for the assets owned by them,
and in each case such title insurance and other insurance is in full force and effect. Neither the
Transaction Entities nor any of the Subsidiaries has any reason to believe that any of them will
not be able to obtain or renew its existing insurance coverage as and when required by the
preceding or as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business.
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(z) Environmental Matters. Except as otherwise disclosed in the Prospectus or as would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
(1) none of the Transaction Entities, any of the Subsidiaries nor, to the best
knowledge of the Transaction Entities, any other owners of each Property at any time or any
other party has at any time handled, stored, treated, transported, manufactured,
transferred or otherwise dealt with, Hazardous Materials (as hereinafter defined) on, to or
from the Properties, other than by any such action taken in compliance with all applicable
Environmental Laws in all material respects;
(2) none of the Transaction Entities, any of the Subsidiaries nor, to the best
knowledge of the Transaction Entities, any other owners of each Property at any time or any
other party has at any time spilled, leaked, discharged, dumped, released, or otherwise
disposed of Hazardous Materials on, to or from the Properties, except where such events
would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;
(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);
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(7) none of the Transaction Entities nor any of the Subsidiaries has (A) been notified
that it is potentially liable under or (B) received any requests for information or other
correspondence concerning any site or facility under, nor has, to the best knowledge of the
Transaction Entities, any seller of the Acquisition Properties, received any notice that it
is considered potentially liable under CERCLA or any similar law;
(8) none of the Properties are included or, to the best knowledge of the Transaction
Entities, 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 knowledge of the Transaction Entities, proposed
for inclusion on any similar list or inventory issued pursuant to any other Environmental
Law or issued by any other Governmental Authority (as hereinafter defined);
(9) the Transaction Entities do not intend to use the Properties or other assets owned
by the Transaction Entities or the Subsidiaries other than in compliance with applicable
Environmental Laws;
(10) to the best knowledge of the Transaction Entities, the Properties contain no
above-ground and underground storage tanks, oil/water separators, sumps, or septic systems;
and
(11) (a) to the best knowledge of the Transaction Entities, no building or other
improvement located on the Properties contains any asbestos or asbestos-containing
materials that would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; (b) all asbestos or asbestos-containing materials are managed,
handled, treated, and removed in compliance with Environmental Law, except where such
noncompliance would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and (c) the Transaction Entities do not intend to manage, handle,
treat, or remove asbestos other than in compliance with Environmental Law.
As used herein, “Hazardous Material” means any chemical, substance, waste,
material, pollutant, contaminant, equipment or fixture defined as or deemed hazardous or toxic or
otherwise regulated under any Environmental Law, including, without limitation, RCRA hazardous
wastes, CERCLA hazardous substances, pesticides and other agricultural chemicals, oil and petroleum
products or byproducts and any constituents thereof, urea formaldehyde insulation, lead in paint or
drinking water, asbestos, and polychlorinated biphenyls (PCBs).
As used herein, “Environmental Laws” means all codes, laws (including,
without limitation, common law), ordinances, regulations, reporting or licensing requirements,
rules, or statutes in effect as of the Effective Date relating to pollution or protection of human
health or the environment (including ambient air, surface water, ground water, land surface, or
subsurface strata), including, without limitation (i) the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (ii) the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C.
§§6901 et seq., (“RCRA”); (iii) the Emergency Planning and Community Right to
Know Act (42 U.S.C.
- 15 -
§§11001 et seq.); (iv) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (v) the Clean Water Act (33
U.S.C. §§1251 et seq.); (vi) the Toxic Substances Control Act (15 U.S.C. §§2601 et seq.); (vii) the
Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.); (viii) the Safe Drinking Water
Act (41 U.S.C. §§300f et seq.); (ix) any state, county, municipal or local statues, laws or
ordinances similar or analogous to the federal statutes listed in parts (i) through (viii),
inclusive, of this subparagraph, (x) any amendments to the statutes, laws or ordinances listed in
parts (i) through (ix), inclusive of this subparagraph, (xi) any rules, regulations, enforceable
guidelines or directives, orders or the like adopted pursuant to or implementing the statutes,
laws, ordinances and amendments listed in parts (i) through (x), inclusive, of this subparagraph;
and (xii) any other law, statute, ordinance, amendment, rule, regulation, guideline, directive,
order or the like relating to environmental, health or safety matters.
As used herein, a “Governmental Authority” means any federal, state, or
local governmental authority having or claiming jurisdiction over the properties and assets
described in the Prospectus.
(aa) Independence of Environmental Consultants. None of the environmental consultants that
prepared the Phase I and II Environmental Audits with respect to any of the Properties was employed
for such purpose on a contingent basis or has any substantial interest (contingent or otherwise) in
the Transaction Entities or any of the Subsidiaries (including any predecessor entity), and none of
them nor any of their directors, officers or employees is connected with the Transaction Entities
or any of the Subsidiaries (or any of their predecessor entities) as a promoter, selling agent,
voting trustee, director, officer or employee.
(bb) NYSE Listing Approval. The Shares 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 the Subsidiaries own, possess
or can acquire on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other intellectual property
(collectively, “Intellectual Property Rights”) necessary to conduct the business
now operated or presently intended to be operated by them, or presently employed by them, and have
not received any notice of infringement of or conflict with asserted rights of others with respect
to any Intellectual Property Rights that, if determined adversely to the Transaction Entities or
any of the Subsidiaries, would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(ee) No Proceedings. There are no pending actions, suits or proceedings against or affecting
the Transaction Entities, any of the Subsidiaries or any of the Properties or other assets that, if
determined adversely to the Transaction Entities or any of the Subsidiaries, would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, or would materially
and adversely affect the ability of the Transaction Entities to perform their
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obligations under this Agreement; and no such actions, suits or proceedings are threatened or, to
the Transaction Entities’ knowledge, contemplated.
(ff) No Material Adverse Change; No Material Transactions. Except as disclosed in the
Prospectus, the Registration Statement or the Disclosure Package, since the respective dates as of
which information is given in the Prospectus, the Registration Statement and the Disclosure
Package, (1) there has been no Material Adverse Effect, nor any development or event involving a
prospective Material Adverse Effect; (2) there have been no transactions entered into by the
Company nor any of its Subsidiaries which are material with respect to the Company and its
Subsidiaries considered as one entity; or (3) except for quarterly dividends on the Common Stock
and the Company’s 7.375% Series A Cumulative Redeemable Preferred Stock (the “Series A
Preferred Stock”) and related distributions on OP Units and Series A units, respectively,
that are consistent with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock or by the Operating
Partnership on any of its partnership interests.
(gg) Investment Company Act Status. No Transaction Entity is and, after giving effect to the
offering and sale of the Shares 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 Disclosure Package, the Registration Statement or the
Prospectus or the documents incorporated by reference therein, or to be filed as exhibits thereto
which have not been so described and filed as required.
(ii) Related Party Disclosures. No relationship, direct or indirect, exists between or among
any of the Transaction Entities on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Transaction Entities on the other hand, which is required to be
described in the Prospectus and which is not so described.
(jj) Books, Records, and Internal Controls. Each Transaction Entity (i) makes and keeps books
and records that are accurate in all material respects and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are executed in accordance with
management’s authorization, (B) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s authorization and (D) the reported accountability
for its assets is compared with existing assets at reasonable intervals.
(kk) Stabilization Activities. None of the Transaction Entities nor any of their respective
officers, directors, members or controlling persons has taken, or will take, directly or
indirectly, any action designed to or that might reasonably be expected to result in a violation of
Regulation M under the Exchange Act or cause or result in stabilization or manipulation of the
price of any of the Company’s securities to facilitate the sale or resale of the Shares.
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(ll) Use of Proceeds. The Company intends to apply the net proceeds from the sale of the
Shares being sold by the Company in accordance with the description set forth in the Prospectus
under the heading “Use of Proceeds.”
(mm) Subsidiary Tax Classification. Each of the Operating Partnership and any other Subsidiary
that is a partnership or a limited liability company has been properly classified either as a
partnership or as an entity disregarded as separate from the Company for federal income tax
purposes throughout the period from its formation through the date hereof.
(nn) Adequate Disclosure of Acquisitions and Dispositions. There are no contracts, letters of
intent, term sheets, agreements, arrangements or understandings with respect to the direct or
indirect acquisition or disposition by the Company of interests in assets or real property that is
required to be described in the Prospectus that is not already so described.
(oo) Internal Controls. The Company, the Operating Partnership and the Subsidiaries have
established and maintain “disclosure controls and procedures” (as such term is
defined in Rule 13a-15 and 15d-15 promulgated under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the Company and its
Subsidiaries, is made known to the Company’s Chief Executive Officer and Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are effective to perform
the functions for which they were established. The Company, the Operating
Partnership and the Subsidiaries have established and maintain internal control over financial
reporting (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such internal
control over financial reporting is designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, including providing
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or
disposition of the Company’s assets that could have a material effect on the financial statements.
The Company’s independent registered public accounting firm and the audit committee of the Board of
Directors have been advised of: (i) any significant deficiencies and material weaknesses in the
design or operation of internal controls which could adversely affect the Company’s ability to
record, process, summarize, and report financial data; and (ii) any fraud, whether or not material,
that involves management or other employees who have a role in the Company’s internal controls.
Since the date of the most recent evaluation of such disclosure controls and procedures, there have
been (I) no material weakness in the Company’s internal control over financial reporting (whether
or not remediated) and (II) no significant changes in internal controls or in other factors that
could significantly and negatively affect internal controls.
(pp) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of
the Company, the Operating Partnership and the Subsidiaries or any of such entities’ directors or
officers, in their capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(qq) Pending Proceedings and Examinations. The Registration Statement is not the subject of a
pending proceeding or examination under Section 8(d) or 8(e) of the Act, and the
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Company is not the subject of a pending proceeding under Section 8A of the Act in connection with
the offering of the Shares.
(rr) OFAC. Neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or
lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other person or entity for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of
the Shares shall be deemed to be a representation and warranty by the Company, as to matters
covered thereby, to the Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided,
however, that the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(b) to make available to the Underwriter in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriter, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriter may request for the
purposes contemplated by the Act; in case the Underwriter is required to deliver (whether
physically or through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period referred
to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act,
the Company will prepare, at its expense, promptly upon request such amendment or
amendments to the Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of
Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
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appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will endeavor to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible; and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, the Registration Statement shall cease
to comply with the requirements of the Act with respect to eligibility for the use of the
form on which the Registration Statement was filed with the Commission or the Registration
Statement shall cease to be an “automatic shelf registration statement” (as defined in Rule
405 under the Act) or the Company shall have received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission”, to (i) promptly notify you, (ii) promptly file
with the Commission a new registration statement under the Act, relating to the Shares, or
a post-effective amendment to the Registration Statement, which new registration statement
or post-effective amendment shall comply with the requirements of the Act and shall be in a
form reasonably satisfactory to you, (iii) use its best efforts to cause such new
registration statement or post-effective amendment to become effective under the Act as
soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other
action reasonably necessary or appropriate to permit the public offering and sale of the
Shares to continue as contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new registration statement or
post-effective amendment, if any;
(e) if the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at any time
during the period when a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, to file with the Commission, prior to such third
anniversary, a new registration statement under the Act relating to the Shares, which new
registration statement shall comply with the requirements of the Act (including, without
limitation, Rule 415(a)(6) under the Act) and shall be in a form reasonably satisfactory to
you; such new registration statement shall constitute an “automatic shelf registration
statement” (as defined in Rule 405 under the Act); provided, however, that
if the Company is not then eligible to file an “automatic shelf registration statement” (as
defined in Rule 405 under the Act), then such new registration statement need not
constitute an “automatic shelf registration statement” (as defined in Rule 405 under the
Act), but the Company shall use its best efforts to cause such new registration statement
to become effective under the Act as soon as practicable, but in any event within 180
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days after such third anniversary and promptly notify you of such effectiveness; the
Company shall take all other action necessary or appropriate to permit the public offering
and sale of the Shares to continue as contemplated in the Prospectus; all references herein
to the Registration Statement shall be deemed to include each such new registration
statement, if any;
(f) until the end of the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule), to advise you promptly, confirming such advice in writing, of any request by
the Commission for amendments or supplements to the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its best efforts to obtain the lifting or removal of such order as soon
as possible; until the end of the period during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172 under the Act or
any similar rule), to advise you promptly of any proposal to amend or supplement the
Registration Statement, the Basic Prospectus or the Prospectus, and to provide you and
Underwriter’s counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall reasonably object in writing;
(g) subject to Section 4(f) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act for so long as a
prospectus is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and
to provide you, for your review and comment, with a copy of such reports and statements and
other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the
Exchange Act during such period a reasonable amount of time prior to any proposed filing,
and to file no such report, statement or document to which you shall have reasonably
objected in writing; and to promptly notify you of such filing;
(h) to pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act (without
reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule
456(b) and Rule 457(r) under the Act;
(i) to advise the Underwriter promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
- 21 -
statements therein, in the light of the circumstances under which they are made, not misleading,
and to advise the Underwriter promptly if, during such period, it shall become necessary to
amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of
the Act, and, in each case, during such time, subject to Section 4(f) hereof, to prepare and
furnish, at the Company’s expense, to the Underwriter promptly such amendments or supplements to
such Prospectus as may be necessary to reflect any such change or to effect such compliance;
(j) to make generally available to its security holders, and to deliver to you, an earnings
statement of the Company (which will satisfy the provisions of Section 11(a) of the Act)
covering a period of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after
the termination of such twelve-month period;
(k) if requested by you, to furnish to you two copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including all exhibits
thereto and documents incorporated by reference therein);
(l) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by the Company’s
independent registered public accountants, as stated in their letter to be furnished pursuant to
Section 6(c) hereof;
(m) to apply the net proceeds from the sale of the Shares in the manner set forth under the
caption “Use of proceeds” in the Prospectus Supplement;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and
filing of the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus, each Permitted Free Writing Prospectus and any amendments or supplements thereto,
and the printing and furnishing of copies of each thereof to the Underwriter and to dealers
(including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of
the Shares including any stock or transfer taxes and stamp or similar duties payable upon the
sale, issuance or delivery of the Shares to the Underwriter, (iii) the producing (other than
fees and expenses of Underwriter’s counsel), word processing and/or printing of this Agreement,
any dealer agreements, any Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the
Underwriter and (except closing documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the Shares for offering and sale under state or foreign laws and the
determination of their eligibility for investment under state or foreign law (including the
legal fees and filing fees and other disbursements of counsel for the Underwriter) and the
printing and furnishing of copies of any blue sky surveys or legal investment surveys to the
Underwriter and to dealers, (v) any listing of the Shares on any securities exchange, including
the NYSE and any registration thereof under the Exchange Act, (vi) any filing
- 22 -
for review of the public offering of the Shares by FINRA, including the legal fees and filing
fees and other disbursements of counsel to the Underwriter relating to FINRA matters, (vii) the
fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and
expenses of the Company relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Shares to prospective investors and the Underwriter’s
sales forces, including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel, lodging and other expenses incurred by the officers of the
Company and any such consultants, and the cost of any aircraft chartered in connection with the
road show, and (ix) the performance of the Company’s other obligations hereunder;
(o) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(p) beginning on the date hereof and ending on, and including, the date that is 60 days
after the date of the Prospectus Supplement (the “Lock-Up Period”), without the prior
written consent of UBS, not to (i) issue, sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose
of, directly or indirectly, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the
rules and regulations of the Commission promulgated thereunder, with respect to, any Common
Stock or any other securities of the Company that are substantially similar to Common Stock, or
any securities convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (ii) file or cause to become effective a registration
statement under the Act relating to the offer and sale of any Common Stock or any other
securities of the Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other rights to
purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of Common Stock or
any other securities of the Company that are substantially similar to Common Stock, or any
securities convertible into or exchangeable or exercisable for, or any warrants or other rights
to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to
effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the
registration of the offer and sale of the Shares as contemplated by this Agreement, (B) a
registration statement on Form S-8 relating to the BioMed Realty Trust, Inc. and BioMed Realty,
L.P. 2004 Incentive Award Plan (the “Equity Incentive Plan”) as described in the
Registration Statement, (C) grants of equity awards to employees, consultants or directors in
accordance with the terms of the currently existing Equity Incentive Plan as described in the
Registration Statement, (D) issuances of Common Stock pursuant to the exercise of any employee
stock options outstanding on the date hereof, (E) issuances of Common Stock in accordance with
the Company’s dividend reinvestment and stock purchase plan as disclosed in the Registration
Statement, (F) issuances of OP Units in connection with other acquisitions of real property or
real property companies, (G) issuances of Common
- 23 -
Stock upon the conversion of currently outstanding OP Units or upon the exchange of
Exchangeable Notes in accordance with the terms of the securities as disclosed in the
Registration Statement, or (H) the filing of a registration statement on or after November
24, 2008 to replace the Company’s expiring registration statement on Form S-3 (File No.
333-129025), solely with respect to shares of Common Stock issuable in exchange for
previously issued OP Units registered pursuant to the above-referenced expiring
registration statement; provided, however, that if (a) during the period
that begins on the date that is fifteen (15) calendar days plus three (3) business days
before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period,
the Company issues an earnings release or material news or a material event relating to the
Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces
that it will release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section 4(p) shall
continue to apply until the expiration of the date that is fifteen (15) calendar days plus
three (3) business days after the date on which the issuance of the earnings release or the
material news or material event occurs; provided, further, that the
immediately preceding proviso shall not apply if (i) the safe harbor provided by Rule 139
under the Act, is available in the manner contemplated by Conduct Rule 2711(f)(4) of FINRA;
and (ii) within the 3 business days preceding the 15th calendar day before the last day of
the Lock-Up Period, the Company delivers (in accordance with Section 14) to UBS a
certificate, signed by the Chief Financial Officer or Chief Executive Officer of the
Company, certifying on behalf of the Company that the Company’s shares of Common Stock are
“actively traded securities,” as defined in Rule 101(c) of Regulation M under the Exchange
Act;
(q) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of
the Act), or use any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Prospectus and, only prior to the
time the Prospectus has been prepared and is available for use, the Basic Prospectus and
any Permitted Free Writing Prospectus;
(r) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(s) to use its best efforts to cause the Shares to be listed on the NYSE and to
maintain the listing of the Common Stock, including the Shares, on the NYSE; and
(t) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(u) The Company will use its best efforts to maintain its qualification as a REIT under the
Code.
- 24 -
(v) During the period when the Prospectus is required to be delivered under the Act or the
Exchange Act, the Company will comply with all provisions of the Act and the Exchange Act.
(w) 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.
5. Reimbursement of the Underwriter’s Expenses. If, after the execution and delivery
of this Agreement, the Shares are not delivered for any reason other than the default by the
Underwriter in its obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 4(n) hereof, reimburse the Underwriter for all of its out-of-pocket expenses,
including the fees and disbursements of their counsel.
6. Conditions of the Underwriter’s Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy of the respective representations and warranties on the part
of each of the Transaction Entities on the date hereof, at the time of purchase and, if applicable,
at the additional time of purchase, the performance by the Transaction Entities of each of their
respective obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at
the additional time of purchase, (i) an opinion of Xxxxxx & Xxxxxxx LLP, counsel for the
Company, addressed to the Underwriter, and dated the time of purchase or the additional
time of purchase, as the case may be and in form and substance satisfactory to UBS, in the
form set forth in Exhibit B-1 hereto; and (ii) a tax opinion of Xxxxxx & Xxxxxxx
LLP, tax counsel for the company, addressed to the Underwriter, and dated the time of
purchase or the additional time of purchase, as the case may be, with executed copies for
the Underwriter, and in form and substance satisfactory to UBS, in the form set forth in
Exhibit B-2 hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at
the additional time of purchase, an opinion of Xxxxxxx LLP, special Maryland counsel for
the Company, addressed to the Underwriter, and dated the time of purchase or the additional
time of purchase, as the case may be, and in form and substance satisfactory to UBS, in the
form set forth in Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of
this Agreement, the time of purchase and, if applicable, the additional time of purchase,
and addressed to the Underwriter in the forms satisfactory to UBS, which letters shall
cover, without limitation, the various financial disclosures contained in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of DLA Piper LLP (US), counsel for the
Underwriter, dated the time of purchase or the additional time of purchase, as the case
- 25 -
may be, in form and substance reasonably satisfactory to UBS.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(f) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been
filed and shall have become effective under the Act. The Prospectus Supplement shall have
been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30
P.M., New York City time, on the second full business day after the date of this Agreement
(or such earlier time as may be required under the Act).
(g) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) none of the Basic
Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they are made,
not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any,
shall include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(h) Each Transaction Entity will, at the time of purchase and, if applicable, at the
additional time of purchase, deliver to you a certificate of its or its general partner’s
Chief Executive Officer and its Chief Financial Officer, dated the time of purchase or the
additional time of purchase, as the case may be, in the form attached as Exhibit D
hereto.
(i) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(o) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and the additional time of purchase, as the case may be.
(j) The Company shall have furnished to you such other documents and certificates as
to the accuracy and completeness of any statement in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the time of
purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(k) The Shares shall have been approved for listing on the NYSE, subject only to
notice of issuance at or prior to the time of purchase or the additional time of purchase,
- 26 -
as the case may be.
(l) FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the Underwriter hereunder shall be subject to termination in the absolute
discretion of UBS, if (1) since the time of execution of this Agreement or the earlier respective
dates as of which information is given in the Registration Statement, the Basic Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, there has been any change or any
development involving a prospective change in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries taken as a whole, the effect
of which change or development is, in the sole judgment of UBS, so material and adverse as to make
it impractical or inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement, the Basic Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since the time of execution
of this Agreement, there shall have occurred: (A) a suspension or material limitation in trading in
securities generally on the NYSE, the American Stock Exchange or the NASDAQ; (B) a suspension or
material limitation in trading in the Company’s securities on the NYSE; (C) a general moratorium on
commercial banking activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance services in the
United States; (D) an outbreak or escalation of hostilities or acts of terrorism involving the
United States or a declaration by the United States of a national emergency or war; or (E) any
other calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (D) or (E), in the sole
judgment of UBS, makes it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the Registration Statement,
the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, or (3)
since the time of execution of this Agreement, there shall have occurred any downgrading, or any
notice or announcement shall have been given or made of: (A) any intended or potential downgrading
or (B) any watch, review or possible change that does not indicate an affirmation or improvement in
the rating accorded any securities of or guaranteed by the Company or any Subsidiary by any
“nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2)
under the Act.
If UBS elects to terminate this Agreement as provided in this Section 7, the Company shall be
notified promptly in writing.
If the sale to the Underwriter of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriter for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(n), 5 and 9 hereof), and the Underwriter shall be
- 27 -
under no obligation or liability to the Company under this Agreement (except to the extent provided
in Section 9 hereof) or to one another hereunder.
8. Intentionally Omitted.
9. Indemnity and Contribution.
(a) The Transaction Entities, jointly and severally, agree to indemnify, defend and
hold harmless the Underwriter, its partners, directors, officers and members, any person
who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and any “affiliate” (within the meaning of Rule 405 under the Act) of the
Underwriter, and the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which the Underwriter or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the Company)
or arises out of or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not misleading,
except insofar as any such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning the Underwriter furnished in writing by
or on behalf of the Underwriter through you to the Company expressly for use in, the
Registration Statement or arises out of or is based upon any omission or alleged omission
to state a material fact in the Registration Statement in connection with such information,
which material fact was not contained in such information and which material fact was
required to be stated in such Registration Statement or was necessary to make such
information not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include the Basic Prospectus, the Prospectus Supplement, the
Prospectus and any amendments or supplements to the foregoing), in any Covered Free Writing
Prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of the
Company, which “issuer information” is required to be, or is, filed with the Commission, or
in any Prospectus together with any combination of one or more of the Covered Free Writing
Prospectuses, if any, or arises out of or is based upon any omission or alleged omission to
state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except, with respect to such
Prospectus or any Permitted Free Writing Prospectus, insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity with information
concerning the Underwriter furnished in writing by or on behalf of the Underwriter through
you to the Company expressly for use in, such Prospectus or Permitted Free Writing
Prospectus or arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not
- 28 -
contained in such information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which they were made,
not misleading.
(b) The Underwriter agrees to indemnify, defend and hold harmless each Transaction Entity,
each of its directors and officers, and any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of
all of the foregoing persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally, the Company or any
such person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in, and in conformity with
information concerning the Underwriter furnished in writing by or on behalf of the Underwriter
through you to the Company expressly for use in, the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the Company), or
arises out of or is based upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in, and in conformity
with information concerning the Underwriter furnished in writing by or on behalf of the
Underwriter through you to the Company expressly for use in, a Prospectus or a Permitted Free
Writing Prospectus, or arises out of or is based upon any omission or alleged omission to state
a material fact in such Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and which material fact
was necessary in order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against a
person (an “indemnified party”) in respect of which indemnity may be sought against the
Transaction Entities or the Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b), respectively, of this Section 9, such indemnified party shall
promptly notify such indemnifying party in writing of the institution of such Proceeding and
such indemnifying party shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such indemnifying party shall
not relieve such indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise, except to the extent that the indemnifying party is
substantially prejudiced as determined by a court of competent jurisdiction in a nonappealable
judgment. The indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such
Proceeding or the
- 29 -
indemnifying party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified party or
parties shall have reasonably concluded based on advice of counsel that there may be
defenses available to it or them which are different from, additional to or in conflict
with those available to such indemnifying party (in which case such indemnifying party
shall not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of related Proceedings
in the same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any settlement of any
Proceeding effected without its written consent but, if settled with its written consent,
such indemnifying party agrees to indemnify and hold harmless the indemnified party or
parties from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 9(c), then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have fully reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding 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 includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault or culpability or a failure
to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold
an indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Transaction Entities on the one hand and the Underwriter
on the other hand from the offering of the Shares 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 of the Underwriter on the
other in connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Transaction Entities on the one hand
and the Underwriter
- 30 -
on the other shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Transaction Entities, and the total underwriting discounts and
commissions received by the Underwriter, bear to the aggregate public offering price of the
Shares. The relative fault of the Company on the one hand and of the Underwriter on the
other shall be determined by reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriter and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(e) The Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable considerations
referred to in subsection (d) above. Notwithstanding the provisions of this Section 9, the
Underwriter shall not be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by the Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which the Underwriter
has otherwise been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. 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.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Transaction Entities contained in this
Agreement shall remain in full force and effect regardless of any investigation made by or
on behalf of the Underwriter, or any of its respective partners, directors, officers or
members or any person (including each partner, officer, director or member of such person)
who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or by or on behalf of the Transaction Entities, their respective
directors or officers or any person who controls the Transaction Entities within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The Transaction
Entities and the Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Transaction Entities, against any of their
officers or directors in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriter. The statements set forth under the
sections entitled “Commissions and Discounts,” only with respect to the amount of selling
concession and reallowance and “Price Stabilizations and Short Positions” under the caption
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“Underwriting” in the Prospectus, constitute the only information furnished by or on behalf of the
Underwriter, as such information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriter, shall be
sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000-0000, Attention: Syndicate Department; and if to the Transaction Entities, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, with a copy
to Xxxxxx & Xxxxxxx LLP, 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxx, Esq.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute
of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with, the laws of the
State of New York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have exclusive jurisdiction over the adjudication of such matters, and
each Transaction Entity consents to the jurisdiction of such courts and personal service with
respect thereto. The Transaction Entities each hereby consent to personal jurisdiction, service and
venue in any court in which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against the Underwriter or any indemnified party. The Underwriter and
each Transaction Entity (on its behalf and, to the extent permitted by applicable law, on behalf of
its stockholders, unitholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out
of or relating to this Agreement. The Transaction Entities each agree that a final judgment in any
such action, proceeding or counterclaim brought in any such court following the exhaustion of all
available appeals shall be conclusive and binding upon the Transaction Entities and may be enforced
in any other courts to the jurisdiction of which the Transaction Entities are or may be subject, by
suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriter and the Transaction Entities and to the extent provided in
Section 9 hereof the controlling persons, partners, directors, officers, members and affiliates
referred to in such Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from the Underwriter) shall acquire or have
any right under or by virtue of this Agreement.
15. No Fiduciary Relationship. The Transaction Entities each hereby acknowledge that
the Underwriter is acting solely as the underwriter in connection with the purchase and sale of the
Company’s securities. The Transaction Entities each further acknowledge that the
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Underwriter is acting pursuant to a contractual relationship created solely by this Agreement
entered into on an arm’s length basis, and in no event do the parties intend that the Underwriter
act or be responsible as a fiduciary to the Transaction Entities, their respective management,
stockholders, unitholders or creditors or any other person in connection with any activity that the
Underwriter may undertake or have undertaken in furtherance of the purchase and sale of the
Company’s securities, either before or after the date hereof. The Underwriter hereby expressly
disclaims any fiduciary or similar obligations to the Transaction Entities, either in connection
with the transactions contemplated by this Agreement or any matters leading up to such
transactions, and the Transaction Entities each hereby confirm their understanding and agreement to
that effect. The Transaction Entities and the Underwriter agree that they are each responsible for
making their own independent judgments with respect to any such transactions and that any opinions
or views expressed by the Underwriter to the Transaction Entities regarding such transactions,
including, but not limited to, any opinions or views with respect to the price or market for the
Company’s securities, do not constitute advice or recommendations to the Transaction Entities. The
Transaction Entities and the Underwriter agree that the Underwriter is acting as principal and not
the agent or fiduciary of the Transaction Entities, and the Underwriter has not assumed, and will
not assume, any advisory responsibility in favor of the Transaction Entities with respect to the
transactions contemplated hereby or the process leading thereto (irrespective of whether the
Underwriter has advised or is currently advising the Transaction Entities on other matters). The
Transaction Entities each hereby waive and release, to the fullest extent permitted by law, any
claims that the Transaction Entities may have against the Underwriter with respect to any breach or
alleged breach of any fiduciary, advisory or similar duty to the Transaction Entities in connection
with the transactions contemplated by this Agreement or any matters leading up to such
transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriter and
the Transaction Entities and their successors and assigns and any successor or assign of any
substantial portion of any of the Transaction Entities’ and the Underwriter’s respective businesses
and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by the
Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
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If the foregoing correctly sets forth the understanding among the Company, the Operating
Partnership and the Underwriter, please so indicate in the space provided below for that purpose,
whereupon this Agreement and your acceptance shall constitute a binding agreement among the
Company, the Operating Partnership and the Underwriter.
| Very truly yours, BIOMED REALTY TRUST, INC. |
||||
| By: | /s/ Xxxx X. Gold | |||
| Name: | Xxxx X. Gold | |||
| Title: | President and CEO | |||
| BIOMED REALTY, L.P. |
||||
| By: | /s/ Xxxx X. Gold | |||
| Name: | Xxxx X. Gold | |||
| Title: | President and CEO | |||
Accepted and agreed to as of the date
first above written, on behalf of itself
first above written, on behalf of itself
| UBS Securities LLC | ||||
| By: UBS Securities LLC | ||||
By:
|
/s/ Xxx Xxxxxxxx
|
|||
| Title: Managing Director | ||||
By:
|
/s/ Xxxx Xxxxxxxx
|
|||
| Title: Associate Director | ||||
