11,000,000 Shares of Common Stock (Par Value $0.01 Per Share) BIOMED REALTY TRUST, INC. (A MARYLAND CORPORATION) FORM OF UNDERWRITING AGREEMENT

 

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                                                                     Exhibit 1.1

 

 

                        11,000,000 Shares of Common Stock

                           (Par Value $0.01 Per Share)

 

                            BIOMED REALTY TRUST, INC.

                            (A MARYLAND CORPORATION)

 

                         FORM OF UNDERWRITING AGREEMENT

 

June __, 2005

 

 

RAYMOND JAMES & ASSOCIATES, INC.

As Representative of the Several Underwriters listed on Schedule I hereto

c/o Raymond James & Associates, Inc.

880 Carillon Parkway

St. Petersburg, Florida 33716

 

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 Raymond James & Associates, Inc. ("RAYMOND JAMES") and each of

the other underwriters named in Schedule I hereto (the "UNDERWRITERS") for whom

Raymond James is acting as representative (the "REPRESENTATIVE") with respect to

the issuance and sale by the Company and the purchase by the Underwriters,

acting severally and not jointly, of 11,000,000 shares (the "FIRM SECURITIES")

of the Company's common stock, par value $0.01 per share (the "COMMON STOCK"),

and with respect to the grant by the Company to the Underwriters, acting

severally and not jointly, of an option to purchase an aggregate of not more

than 1,650,000 additional shares of Common Stock (the "OPTIONAL SECURITIES"),

subject to the terms and conditions set forth below. The Firm Securities and the

Optional Securities are herein collectively called the "OFFERED SECURITIES."

This agreement by and among the Company, the Operating Partnership and the

Underwriters shall be referred to as this "AGREEMENT".

 

      As part of the offering contemplated by this Agreement, the Company and

the Underwriters agree that up to 379,500 shares (the "DIRECTED SHARES") of the

Offered Securities to be purchased by the Underwriters shall be reserved for

sale by the Underwriters to certain of the Company's directors, officers,

employees and other parties associated with the Company (each, individually a

"PARTICIPANT" and collectively, the "PARTICIPANTS"), as part of the distribution

of the Shares by the Underwriters, under the terms of the friends and family

directed sales program (the "FRIENDS AND FAMILY PROGRAM"), and subject to the

terms of this Agreement, the applicable rules, regulations and interpretations

of the National Association of Securities Dealers, Inc. and all other applicable

laws, rules and regulations. Shares to be sold pursuant to the Friends and

Family Program shall be sold pursuant to this Agreement at the public offering

price. To the extent that any such Directed Shares are not orally confirmed for

purchase by a Participant by the end of the first business day after the date of

this Agreement,

<PAGE>

such Directed Shares may be offered to the public as part of the public offering

contemplated hereby.

 

1.     REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION ENTITIES.   Each of

the Transaction Entities, jointly and severally, represents and warrants

to, and agrees with, the several Underwriters, that:

 

      A.     REGISTRATION STATEMENT.

 

            (1) A registration statement on Form S-11 (No. 333-_____) relating

      to the Offered Securities ("INITIAL REGISTRATION STATEMENT"), including a

      form of prospectus, has been filed with the Securities and Exchange

      Commission (the "COMMISSION") and either (i) has been declared effective

      under the Securities Act of 1933, as amended (the "ACT"), and is not

      proposed to be amended or (ii) is proposed to be amended by amendment or

      post-effective amendment.

 

            (2) If the Initial Registration Statement has been declared

      effective, either (i) an additional registration statement ("ADDITIONAL

      REGISTRATION STATEMENT") relating to the Offered Securities has been filed

      with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act

      and has become effective upon filing pursuant to such rule and the Offered

      Securities all have been duly registered under the Act pursuant to the

      Initial Registration Statement and the Additional Registration Statement;

      (ii) such Additional Registration Statement is under consideration for

      filing with the Commission pursuant to Rule 462(b) and will become

      effective upon filing pursuant to such rule, and upon such filing the

      Offered Securities will all have been duly registered under the Act

      pursuant to the Initial Registration Statement and such Additional

      Registration Statement; or (iii) it is not contemplated to file an

      Additional Registration Statement, and the Offered Securities all have

      been duly registered under the Act pursuant to the Initial Registration

      Statement.

 

            (3) If the Company does not propose to amend the Initial

      Registration Statement or if an Additional Registration Statement has been

      filed and the Company does not propose to amend it, and if any

      post-effective amendment to either such registration statement has been

      filed with the Commission prior to the execution and delivery of this

      Agreement, the most recent amendment (if any) to each such registration

      statement has been declared effective by the Commission or has become

      effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the

      Act or, in the case of the Additional Registration Statement, Rule 462(b).

 

            (4) For purposes of this Agreement, the "EFFECTIVE TIME" with

      respect to the Initial Registration Statement and, if filed prior to the

      execution and delivery of this Agreement, the Additional Registration

      Statement means:

 

                  (a) if the Company has advised the Representative that it does

            not propose to amend such registration statement, the date and time

            as of which such registration statement, or the most recent

             post-effective amendment thereto (if any) filed prior to the

            execution and delivery of this Agreement, was declared

 

 

                                      -2-

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            effective by the Commission or has become effective upon filing

            pursuant to Rule 462(c); or

 

                  (b) if the Company has advised the Representative that it

            proposes to file an amendment or post-effective amendment to such

            registration statement, the date and time as of which such

            registration statement, as amended by such amendment or

            post-effective amendment, as the case may be, is declared effective

            by the Commission.

 

            (5) If an Additional Registration Statement has not been filed prior

      to the execution and delivery of this Agreement but the Company has

      advised the Representative that it proposes to file one, "EFFECTIVE TIME"

      with respect to such Additional Registration Statement means the date and

       time as of which such registration statement is filed and becomes

      effective pursuant to Rule 462(b).

 

            (6) "EFFECTIVE DATE" with respect to the Initial Registration

      Statement or the Additional Registration Statement (if any) means the date

      of the Effective Time thereof.

 

            (7) The Initial Registration Statement, as amended at its Effective

      Time, including all information contained in the Additional Registration

      Statement (if any) and deemed to be a part of the Initial Registration

      Statement as of the Effective Time of the Additional Registration

      Statement pursuant to the General Instructions of the Form on which it is

      filed and including all information (if any) deemed to be a part of the

      Initial Registration Statement as of its Effective Time pursuant to Rule

      430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the

      "INITIAL REGISTRATION STATEMENT."

 

            (8) The Additional Registration Statement, as amended at its

      Effective Time, including the contents of the Initial Registration

      Statement incorporated by reference therein and including all information

      (if any) deemed to be a part of the Additional Registration Statement as

      of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to

      as the "ADDITIONAL REGISTRATION STATEMENT."

 

            (9) The Initial Registration Statement and the Additional

      Registration Statement are herein referred to collectively as the

      "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT."

 

            (10) The form of prospectus relating to the Offered Securities, as

      first filed with the Commission pursuant to and in accordance with Rule

      424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as

      included in a Registration Statement, is hereinafter referred to as the

      "PROSPECTUS."

 

            (11) No document has been or will be prepared or distributed in

      reliance on Rule 434 under the Act.

 

            (12) For purposes of this Agreement (other than in connection with

      any opinion given by counsel in Section 5 hereof, which hereby expressly

      excludes any copy filed via Electronic Data Gathering, Analysis and

      Retrieval System ("EDGAR")), all references to

 

 

                                      -3-

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      the "REGISTRATION STATEMENT", the "PROSPECTUS", any "PRELIMINARY

      PROSPECTUS", or any amendment or supplement to any of the foregoing shall

      be deemed to include the copy filed with the Commission pursuant to EDGAR.

 

      B. CONFORM TO ACT; NO MISLEADING STATEMENTS; CONFORMITY WITH EDGAR

FILINGS.

 

            (1) If the Effective Time of the Initial Registration Statement is

      prior to the execution and delivery of this Agreement:

 

                  (a) on the Effective Date of the Initial Registration

            Statement, the Initial Registration Statement conformed in all

            material respects to the requirements of the Act and the rules and

            regulations of the Commission ("RULES AND REGULATIONS") and did not

            include any untrue statement of a material fact or omit to state any

            material fact required to be stated therein or necessary to make the

            statements therein not misleading;

 

                  (b) on the Effective Date of the Additional Registration

            Statement (if any) each Registration Statement conformed, or will

            conform, in all material respects to the requirements of the Act and

            the Rules and Regulations and did not include, or will not include,

            any untrue statement of a material fact and did not omit, or will

            not omit, to state any material fact required to be stated therein

            or necessary to make the statements therein not misleading; and

 

                  (c) on the date of this Agreement, the Initial Registration

            Statement and, if the Effective Time of the Additional Registration

            Statement is prior to the execution and delivery of this Agreement,

            the Additional Registration Statement each conform, and at the time

            of filing of the Prospectus pursuant to Rule 424(b) or (if no such

            filing is required) at the Effective Date of the Additional

            Registration Statement in which the Prospectus is included, each of

            the Registration Statement or Registration Statements and the

            Prospectus conformed, or will conform, in all respects to the

            requirements of the Act and the Rules and Regulations, and none of

            such documents includes, or will include, any untrue statement of a

            material fact or omits, or will omit, to state any material fact

            required to be stated therein or necessary to make the statements

            therein (with respect to the Prospectus only, in light of the

            circumstances under which they were made) not misleading.

 

            (2) If the Effective Time of the Initial Registration Statement is

      subsequent to the execution and delivery of this Agreement, then on the

      Effective Date of the Initial Registration Statement, the Initial

      Registration Statement and the Prospectus will conform in all respects to

      the requirements of the Act and the Rules and Regulations, neither of such

      documents will include any untrue statement of a material fact or will

      omit to state any material fact required to be stated therein or necessary

      to make the statements therein (with respect to the Prospectus only in

      light of the circumstances under which they were made) not misleading, and

      no Additional Registration Statement has been or will be filed.

 

 

                                       -4-

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            (3) The two preceding subsections do not apply to statements in or

      omissions from a Registration Statement or the Prospectus based upon

      written information furnished to the Company by any Underwriter through

      the Representative specifically for use therein, it being understood and

      agreed that the only such information is that described as such in Section

      6.B hereof.

 

            (4) Each Prospectus and preliminary Prospectus delivered to the

      Underwriters and used in connection with this offering was identical to

      the electronically transmitted copies thereof filed with the Commission

      pursuant to EDGAR, except to the extent permitted by Regulation S-T under

      the Act.

 

      C. NO STOP ORDER. No stop order suspending the effectiveness of a

Registration Statement or any part thereof has been issued and no proceeding for

that purpose has been instituted or, to the knowledge of either of the

Transaction Entities, threatened by the Commission or by the state securities

authority of any jurisdiction. No order preventing or suspending the use of the

Prospectus has been issued, and no proceeding for that purpose has been

instituted or, to the knowledge of either of the Transaction Entities,

threatened by the Commission or by the state securities authority of any

jurisdiction.

 

      D. COMPANY FORMATION; GOOD STANDING; QUALIFICATION. The Company has been

duly formed and is validly existing as a corporation in good standing under the

laws of the State of Maryland, with power and authority (corporate and other) to

own its properties and conduct its business as described in the Prospectus and

to enter into and perform its obligations under this Agreement and as general

partner of the Operating Partnership to cause the Operating Partnership to enter

into and perform the Operating Partnership's obligations under this Agreement,

and the Company is duly qualified to do business as a foreign corporation in

good standing in all other jurisdictions in which its ownership or lease of

property or the conduct of its business requires such qualification, except

where the failure to so qualify would not reasonably be expected to have,

individually or in the aggregate, a material adverse effect on the condition

(financial or other), business, earnings, properties, assets, results of

operations or prospects of the Transaction Entities and their subsidiaries taken

as a whole, whether or not in the ordinary course ("MATERIAL ADVERSE EFFECT").

 

      E. OPERATING PARTNERSHIP FORMATION; GOOD STANDING; QUALIFICATION;

INTERESTS IN OPERATING PARTNERSHIP. The Operating Partnership has been duly

formed and is validly existing as a limited partnership in good standing under

the laws of the State of Maryland, is duly qualified to do business and is in

good standing as a foreign limited partnership in each jurisdiction in which its

ownership or lease of property or the conduct of its business requires such

qualification, except where the failure to so qualify would not reasonably be

expected to have a Material Adverse Effect, and has all power and authority

necessary to own its properties and conduct its business as described in the

Prospectus and to enter into and perform its obligations under this Agreement.

The Company is the sole general partner of the Operating Partnership. At the

First Closing Date (defined in Section 2 below), the Second Amended and Restated

Agreement of Limited Partnership of the Operating Partnership, as amended (the

"OPERATING PARTNERSHIP AGREEMENT"), and the aggregate percentage interests of

the Company and the limited partners in the Operating Partnership will be as set

forth in the Prospectus; provided, that to the extent any portion of the

over-allotment option described in Section 2 hereof

 

 

                                      -5-

<PAGE>

is exercised at the First Closing Date, the percentage interest of the Company

and of such limited partners in the Operating Partnership will be adjusted

accordingly. Additionally, to the extent any portion of such over-allotment

option is exercised subsequent to the First Closing Date, the Company will

contribute the proceeds from the sale of the Optional Securities to the

Operating Partnership in exchange for a number of units of limited partnership

of the Operating Partnership ("OP UNITS") equal to the number of Optional

Securities issued.

 

      F. SUBSIDIARY FORMATION; GOOD STANDING; QUALIFICATION; LIENS; PRE-EMPTIVE

RIGHTS. Each direct or indirect subsidiary of the Company, all of which are

listed on Schedule II hereto (each, a "SUBSIDIARY" and together the

"SUBSIDIARIES"), has been duly formed and is validly existing as a corporation,

limited partnership or limited liability company, as the case may be, in good

standing under the laws of the jurisdiction of its organization, with power and

authority (corporate and other) to own its assets and conduct its business as

described in the Prospectus and to enter into and to perform its obligations

under this Agreement; and is duly qualified to do business as a foreign

corporation in good standing in all other jurisdictions in which its ownership

or lease of property or the conduct of its business requires such qualification,

except where the failure to so qualify would not reasonably be expected to have,

individually or in the aggregate, a Material Adverse Effect; all of its issued

and outstanding capital stock or other ownership interests have been duly

authorized and validly issued and are fully paid and non-assessable; and, at the

First Closing Date its capital stock or other ownership interests will be owned

by the Company, directly or through subsidiaries, free and clear of any security

interests, liens, mortgages, encumbrances, pledges, claims, defects or other

restrictions of any kind (collectively, "LIENS"), except as described in the

Prospectus or where such Liens would not reasonably be expected to have,

individually or in the aggregate, a Material Adverse Effect. None of the equity

interests of any Subsidiary were issued in violation of the preemptive or other

similar rights of any securityholder of such Subsidiary. There are no

outstanding options, rights (preemptive or otherwise) or warrants to purchase or

subscribe for equity interests or other securities of any Subsidiary, except as

set forth in the organizational documents of such Subsidiary.

 

      G. CAPITAL OF THE COMPANY; OPTIONS; NO PREEMPTIVE RIGHTS. The authorized

capital stock of the Company conforms in all material respects to the

description thereof contained in the Prospectus under the caption "Description

of Securities" and the issued and outstanding capital stock of the Company, as

of the First Closing Date, will be, in all material respects, as set forth in

the Prospectus under the caption "Capitalization." None of the outstanding

shares of capital stock of the Company was issued in violation of the preemptive

or other similar rights of any securityholder of the Company. Except as

disclosed in the Prospectus: (i) except for shares of Common Stock reserved for

issuance (A) upon exchange or redemption of the OP Units, (B) in connection with

the BioMed Realty Trust, Inc. and BioMed Realty, L.P. 2004 Incentive Award Plan

(the "EQUITY INCENTIVE PLAN") or (C) pursuant to the exercise of the warrant

dated as of August 11, 2004 granted to Raymond James (the "RAYMOND JAMES

WARRANT"), no shares of Common Stock are reserved for any purpose; (ii) except

for the OP Units and the Raymond James Warrant, there are no outstanding

securities convertible into or exchangeable for any shares of Common Stock; and

(iii) except for the Raymond James Warrant, there are no outstanding options,

rights (preemptive or otherwise) or warrants to purchase or subscribe for shares

of Common Stock or any other securities of the Company.

 

 

                                       -6-

<PAGE>

      H. AUTHORIZATION OF ISSUANCE OF SHARES; CONFORMITY WITH APPLICABLE LAWS.

The Offered Securities and all other outstanding shares of capital stock of the

Company have been duly authorized; all outstanding shares of capital stock of

the Company are, and, when the Offered Securities have been delivered and paid

for in accordance with this Agreement on each Closing Date, such Offered

Securities will have been, validly issued, fully paid and non-assessable, have

been, or will be, offered and sold in compliance with all applicable federal and

state securities laws and will conform, in all material respects, to the

description thereof contained in the Prospectus. Upon payment of the purchase

price and delivery of the Offered Securities in accordance herewith, the

Underwriters will receive good, valid and marketable title to the Offered

Securities, free and clear of all Liens. The form of the certificates to be used

to evidence the Offered Securities will, at the First Closing Date, be in due

and proper form and will comply with all applicable legal requirements, the

requirements of the charter and bylaws of the Company and the requirements of

the New York Stock Exchange, Inc. (the "NYSE").

 

      I. AUTHORIZATION OF ISSUANCE OF OP UNITS; CONFORMITY WITH APPLICABLE LAWS;

NO PREEMPTIVE RIGHTS. The issued and outstanding OP Units have been duly

authorized for issuance by the Operating Partnership to the holders thereof and

are validly issued, fully paid and non-assessable, have been offered and sold or

exchanged by the Operating Partnership in compliance with applicable laws and

conform to the description thereof contained in the Prospectus. The OP Units to

be issued to the Company in connection with the offering contemplated by this

Agreement have been duly authorized for issuance by the Operating Partnership

and, when issued and delivered by the Operating Partnership to the Company in

connection with the contribution of the net proceeds of the offering, will be

validly issued, fully paid and non-assessable. The OP Units will be exempt from

registration or qualification under the Act and applicable state securities

laws. None of the OP Units will be subject to or issued in violation of the

preemptive or other similar rights of any securityholder of the Operating

Partnership.

 

      J. NO OTHER BROKERAGE FEES. Except as disclosed in the Prospectus, there

are no contracts, agreements or understandings between the Transaction Entities,

any Subsidiary and any person that would give rise to a valid claim against the

Transaction Entities, any Subsidiary, or any Underwriter for a brokerage

commission, finder's fee or other like payment in connection with this offering,

except commissions payable to real estate brokers in connection with the

acquisition of certain properties that would not reasonably be expected to have

a Material Adverse Effect.

 

      K. NO REGISTRATION RIGHTS. Except for the Registration Rights Agreements

entered into in connection with the Company's initial public offering by and

among the Company, the Operating Partnership and the holders of OP Units party

thereto dated as of August 13, 2004 (the "REGISTRATION RIGHTS AGREEMENTS"),

there are no contracts, agreements or understandings between the Transaction

Entities and any person granting such person the right to require the

Transaction Entities to file a registration statement under the Act with respect

to any securities of the Transaction Entities owned or to be owned by such

person or to require the Transaction Entities to include such securities in the

securities registered pursuant to the Registration Statement or in any

securities being registered pursuant to any other registration statement filed

by the Transaction Entities under the Act.

 

 

                                       -7-

<PAGE>

      L. NO VIOLATIONS OR DEFAULTS. None of the Transaction Entities nor the

Subsidiaries, (i) is in violation of its charter or by-laws or other similar

organizational documents, (ii) is in default (whether with or without the giving

of notice or passage of time or both) in the performance or observance of any

obligation, agreement, term, covenant or condition contained in a contract,

indenture, mortgage, deed of trust, loan or credit agreement, note, lease (under

which such Transaction Entity or a Subsidiary is landlord or otherwise), ground

lease or air space lease (under which such Transaction Entity or a Subsidiary is

tenant), development agreement, reciprocal easement agreement, deed restriction,

hotel management agreement, parking management agreements, or other agreement or

instrument to which it is a party or by which it or any of them is a party or

may be bound, or to which any of the Properties (as hereinafter defined) or any

of its property or assets of such Transaction Entity or Subsidiary is subject

(collectively, "AGREEMENTS OR Instruments"), or (iii) is in violation of any

law, ordinance, governmental rule, regulation or court decree to which it or the

Properties or any of its other properties or assets may be subject, except for

such defaults or violations that would not have, individually or in the

aggregate, a Material Adverse Effect.

 

      M. NO CONSENTS REQUIRED. No consent, approval, authorization, or order of,

or filing or registration with, any governmental agency or body or any court or

any third party is required for the consummation of the transactions

contemplated by this Agreement, except as have been obtained or made under the

Act and as may be required under state securities laws, or such consents,

approvals, authorizations, orders, filings or registrations that will be

obtained or completed by the First Closing Date, or that the absence of which,

individually or in the aggregate would not reasonably be expected to have,

individually or in the aggregate, a Material Adverse Effect.

 

      N. NON-CONTRAVENTION. Except as disclosed in the Prospectus, the

execution, delivery and performance of this Agreement by the Transaction

Entities and the consummation of the transactions contemplated hereby do not and

will not (whether with or without the giving of notice or passage of time or

both) conflict with or result in a breach or violation of any of the terms and

provisions of, or constitute a default (or give rise to any right of

termination, acceleration, cancellation, repurchase or redemption) or Repayment

Event (as hereinafter defined) under, or result in the creation or imposition of

a Lien upon any property or assets of the Transaction Entities or any Subsidiary

pursuant to, (i) any statute, any rule, regulation or order of any governmental

agency or body or any court, domestic or foreign, having jurisdiction over the

Transaction Entities or any of their subsidiaries or any of their properties,

assets or business currently owned by them; (ii) any term, condition or

provision of any Agreements or Instruments; or (iii) the charters, by-laws or

other organizational documents, as applicable, of the Transaction Entities or

any of the Subsidiaries (except for such conflicts, breaches, violations or

defaults that (with response to subclauses (i) and (ii) above) (1) would not

reasonably be expected to have, individually or in the aggregate, a Material

Adverse Effect or (2) relate to mortgage indebtedness to be repaid in full or

equity interests to be purchased in full, with a portion of the net proceeds

from the sale of the Offered Securities, as reflected in the "Use of Proceeds"

section of the Prospectus. As used herein, "REPAYMENT EVENT" means any event or

condition which, without regard to compliance with any notice or other

procedural requirements, gives the holder of any note, debenture or other

evidence of indebtedness (or any person acting on such holder's behalf) the

right to require the repurchase, redemption or repayment of all or a portion of

such indebtedness by the Company or any Subsidiary.

 

 

                                      -8-

<PAGE>

      O. VALIDITY AND SUFFICIENCY OF AGREEMENTS. Each of this Agreement and the

Lock-Up Agreements (as defined below) has been duly and validly authorized,

executed and delivered by each of the Transaction Entities party thereto (and,

to the knowledge of the Transaction Entities, by each other party thereto with

respect to the Lock-Up Agreements), and the Operating Partnership Agreement is a

valid and binding agreement of each of the Transaction Entities that are parties

thereto, enforceable against such Transaction Entity (and, to the knowledge of

the Transaction Entities, against each other party thereto with respect to the

Lock-Up Agreements) in accordance with its terms, except (i) to the extent that

such enforceability may be limited by applicable bankruptcy, insolvency,

fraudulent transfer, moratorium, reorganization or other similar laws now or

hereafter in effect relating to or affecting creditors' rights; (ii) as limited

by the effect of general principles of equity, whether enforcement is considered

in a proceeding in equity or at law (including the possible unavailability of

specific performance or injunctive relief), concepts of materiality,

reasonableness, good faith and fair dealing, and the discretion of the court

before which any proceeding therefore may be brought; (iii) the unenforceability

under certain circumstances under law or court decisions of provisions providing

for the indemnification of or contribution to a party with respect to a

liability where such indemnification or contribution is contrary to public

policy; and (iv) the unenforceability of any provision requiring the payment of

attorney's fees, except to the extent that a court determines such fees to be

reasonable. For purposes of this Agreement, "LOCK UP AGREEMENTS" shall mean at

the First Closing Date, the lock up agreements in the form attached hereto as

Exhibit A by each of the persons listed on Schedule III hereto (the "KEY

OFFICERS").

 

      P. LICENSES. The Transaction Entities and the Subsidiaries possess

adequate certificates, authorities, licenses, consents, approvals, permits and

other authorizations ("LICENSES") issued by appropriate governmental agencies or

bodies or third parties necessary to conduct the business now operated by them,

have maintained such Licenses in full force and effect, and have not received

any notice of proceedings relating to the revocation or modification of any such

Licenses that, if determined adversely to the Transaction Entities or any of the

Subsidiaries, would reasonably be expected to have, individually or in the

aggregate, a Material Adverse Effect. The Transaction Entities and the

Subsidiaries are in compliance with the terms and conditions of all such

Licenses except as would not reasonably be expected to have, individually or in

the aggregate, a Material Adverse Effect.

 

      Q. FINANCIAL STATEMENTS. The financial statements included in the

Registration Statement and the Prospectus, together with the related schedules

and notes, present fairly (1) the financial position of the Company and its

consolidated subsidiaries (and the combined financial position of any

predecessor entities) at the dates indicated; (2) the results of operations,

owners' equity and cash flows of the Company and its consolidated Subsidiaries

(and the combined results of operations, owners' equity, and cash flows of any

predecessor entities) for the periods specified; and (3) the revenues and

certain expenses of certain of the acquisition properties for the periods

specified; said financial statements have been prepared in conformity with U.S.

generally accepted accounting principles ("GAAP") applied on a consistent basis

throughout the periods involved; said financial statements have been prepared on

a consistent basis with the books and records of the Company and its

consolidated subsidiaries (and any predecessor entities) in the case of the

statements of financial position of the Company and its consolidated

subsidiaries (and

 

                                       -9-

<PAGE>

the combined financial position of any predecessor entities) and the results of

operations, owners' equity and cash flows of the Company and its consolidated

Subsidiaries (and the combined results of operations, owners' equity, and cash

flows of any predecessor entities). The supporting schedules included in the

Registration Statement present fairly in accordance with GAAP the information

required to be stated therein. The unaudited pro forma condensed consolidated

financial statements and the related notes thereto included in the Registration

Statement and the Prospectus (the "PRO FORMA FINANCIAL STATEMENTS") have been

prepared in accordance with the applicable requirements of Rules 11-01 and 11-02

of Regulation S-X under the Act, and, in the opinion of the Company, the

assumptions used in the preparation thereof are reasonable and provide a

reasonable basis for presenting the significant effects directly attributable to

the transactions or events described therein, and the related adjustments used

therein give appropriate effect to the transactions and circumstances referred

to therein and the pro forma columns therein reflect the proper application of

these adjustments to the corresponding historical financial statement amounts.

All non-GAAP financial measures included in the Registration Statement and the

Prospectus comply with the requirements of Regulation G and Item 10 of

Regulation S-K under the Act to the extent such rules are applicable to such

financial statements. Other than the historical financial statements, financial

statements prepared in accordance with Rule 3-14 of Regulation S-X under the

Act, Pro Forma Financial Statements, and schedules relating thereto included in

the Registration Statement and Prospectus, no other historical or pro forma

financial statements (or schedules) are required by the Act or the Rules and

Regulations to be included therein.

 

      R. INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM. The accountants who

certified the financial statements and supporting schedules included in the

Registration Statement and delivered the initial letter referred to in Section

5.A hereof, are an independent registered public accounting firm as required by

the Act and the Rules and Regulations.

 

      S. REIT STATUS. Commencing with the taxable year ending December 31, 2004,

the Company has been and is organized and operated in conformity with the

requirements for qualification and taxation as a real estate investment trust (a

"REIT") under the Internal Revenue Code 1986, as amended (the "CODE").

 

      T. TAX RETURNS AND MATTERS. The Transaction Entities and each of the

Subsidiaries (including any predecessor entities) have filed all foreign,

federal, state and local tax returns that are required to be filed or have

requested extensions thereof (except in any case in which the failure so to file

would not reasonably be expected to have a Material Adverse Effect) and have

paid all taxes required to be paid by them and any other assessment, fine or

penalty levied against them, to the extent that any of the foregoing is due and

payable, except for any such assessment, fine or penalty that (i) is currently

being contested in good faith, (ii) would not reasonably be expected to have,

individually or in the aggregate, a Material Adverse Effect or (iii) as

described in or contemplated by the Prospectus. Except as disclosed in the

Prospectus, there is no pending or, to the knowledge of the Transaction

Entities, threatened special assessment, tax reduction proceeding or other

action which could increase or decrease the real property taxes or assessments

of any Property, which would reasonably be expected to have, individually or in

the aggregate, a Material Adverse Effect.

 

      U. NO OTHER OFFERING DOCUMENTS OR PROSPECTUSES. The Transaction Entities

and each of their subsidiaries have not distributed, and prior to the later of

the First Closing Date and the completion of the distribution of the Offered

Securities, will not distribute, any offering

 

 

                                       -10-

<PAGE>

material in connection with the offering or sale of the Offered Securities other

than the Registration Statement, the Prospectus or any other materials, if any,

permitted by the Act (which were disclosed to the Representative and its

counsel).

 

      V.     ERISA MATTERS.

 

            (1) Each Transaction Entity is in compliance, in all material

      respects, with all presently applicable provisions of the Employee

      Retirement Income Security Act of 1974, as amended, including the

      regulations and published interpretations thereunder ("ERISA"); no

      "reportable event" (as defined in ERISA other than an event for which the

      notice requirements have been waived by regulations) has occurred with

      respect to any "pension plan" (as defined in ERISA) for which any

      Transaction Entity would have any liability; no Transaction Entity has

      incurred or expects to incur liability under (i) Title IV of ERISA with

      respect to termination of, or withdrawal from, any "pension plan" or (ii)

      Sections 412 or 4971 of the Code including the regulations and published

      interpretations thereunder; and each "pension plan" for which any

      Transaction Entity would have any liability that is intended to be

      qualified under Section 401(a) of the Code has received a favorable

      determination letter from the Internal Revenue Service that such plan is

      so qualified in all material respects and, except to the knowledge of the

      Transaction Entities, nothing has occurred, whether by action or by

      failure to act, which would cause the loss of such qualification, except

      where such non-compliance, reportable events, liabilities or failure to be

      so qualified would not reasonably be expected to have, individually or in

      the aggregate, a Material Adverse Effect.

 

            (2) The assets of the Transactions Entities and their subsidiaries

      do not constitute "plan assets" of an ERISA regulated employee benefit

      plan.

 

             (3) At the First Closing Date, the Company will be a "real estate

      operating company" as such term is defined in paragraph (e) of the plan

      assets regulation in 29 C.F.R. Section 2510.3-101, or will be an

      "operating company" as defined in the first sentence of paragraph (c)

      thereof.

 

      W.     PROPERTY MATTERS.

 

            (1) The Transaction Entities or their Subsidiaries will have fee

      simple title (or in the case of the Landmark at Eastview property, located

      in Tarrytown, New York, a leasehold interest) to all of the properties

      described in the Prospectus as owned or to be owned or leased by them (the

      "PROPERTIES"), in each case, free and clear of all Liens except such as

      (i) are set forth in the title reports listed on Schedule IV hereto (the

      "TITLE REPORTS"); (ii) are set forth on Schedule V hereto (the

      "Mortgages") (iii) are disclosed in the Prospectus; and (iv) would not

      reasonably be expected to have, individually or in the aggregate, a

      Material Adverse Effect;

 

            (2) Except as disclosed in the Prospectus, none of the Transaction

      Entities, nor any Subsidiary, knows of any violation of any municipal,

      state or federal law, rule or regulation (including those pertaining to

      environmental matters) concerning the

 

 

                                      -11-

<PAGE>

      Properties or any part thereof which would reasonably be expected to have,

      individually or in the aggregate, a Material Adverse Effect;

 

            (3) Each of the Properties complies with all applicable zoning laws,

      ordinances, regulations, and deed restrictions or other covenants in all

      material respects and, if and to the extent there is a failure to comply,

      such failure would not reasonably be expected to have, individually or in

      the aggregate, a Material Adverse Effect;

 

            (4) None of the Transaction Entities, nor any Subsidiary, has

      received from any governmental authority any written notice of any

      condemnation of or zoning change affecting the Properties or any part

      thereof, and none of the Transaction Entities nor any Subsidiary or

      predecessor entity knows of any such condemnation or zoning change that is

       threatened against any of the Properties and that, if consummated, would

      reasonably be expected to have, individually or in the aggregate, a

      Material Adverse Effect;

 

            (5) True, correct and complete copies of the leases, exhibits,

      schedules or other documents that comprise the leases described in the

      "Business and Properties" section of the Prospectus where (1) the tenant

      has been specifically identified or (2) information relating to a lease

      has been summarized even if such tenant has not been specifically

      identified (the "MAJOR LEASES") have been provided or made available to

      the Underwriters or their counsel;

 

            (6) Except as described in the Prospectus, there are no other

      material agreements between any Transaction Entity, or any Subsidiary, on

      the one hand and a tenant under a Major Lease relating to any of the

      Properties;

 

            (7) Except as described in the Prospectus, reflected in the Pro

      Forma Financial Statements, as disclosed in any tenant estoppel

      certificates that are listed on Schedule VI hereto, or as would not

      reasonably be expected to have, individually or in the aggregate, a

      Material Adverse Effect:

 

                  (a) none of the Major Leases has been assigned;

 

                  (b) no brokerage fees, commissions or any similar payments are

            owed or payable by the lessor under any of the Major Leases to any

            third party in connection with the existence or execution thereof,

            or in connection with any renewal, expansion or extension of any

            Major Leases which has occurred prior to, or may occur after, a

            Closing Date, except additional fees payable to brokers in

             connection with the extension of certain leases in the ordinary

            course of business;

 

                  (c) all of the Major Leases, and, all guaranties related

            thereto, if any, are in full force and effect;

 

                  (d) no rentals or other amounts due under the Major Leases

            have been paid more than one month in advance;

 

                  (e) no tenant has asserted in writing any defense or set-off

            against the payment of rent in connection with the Major Leases nor

            has any tenant contested

 

 

                                      -12-

<PAGE>

            any tax, operating cost or other escalation payment or occupancy

            charge, or any other amounts payable under its Major Leases;

 

                  (f)    all tenants, sublessees, licensees, franchisees or

            other parties under the Major Leases are in possession of

            their respective premises;

 

                  (g) except for the mortgage loans encumbering the Properties

            and described in the Prospectus or set forth on Schedule V hereto,

            none of the Major Leases has been assigned, mortgaged, pledged,

            sublet, hypothecated or otherwise encumbered;

 

                  (h)    no material provision under any Major Lease has

            been waived by any Transaction Entity;

 

                  (i) there are no uncured events of default, or events that

            with the giving of notice or passage of time, or both, would

             constitute an event of default, by any tenant under any of the terms

            and provisions of the Major Leases;

 

                  (j) no tenant under any of the leases at the Properties has a

            right of first refusal to purchase the premises demised under such

            lease.

 

            (8) Water, stormwater, sanitary sewer, electricity and telephone

      service are all available at the property lines of each Property over duly

      dedicated streets or perpetual easements of record benefiting the

      applicable Property, except as would not reasonably be expected to have,

      individually or in the aggregate, a Material Adverse Effect.

 

      X. NO PARTICIPATING INTERESTS. The mortgages and deeds of trust

encumbering the Properties and assets described in the Prospectus are not

convertible, and neither the Transaction Entities, any of their Subsidiaries,

nor any person affiliated therewith holds a participating interest therein, and

such mortgages and deeds of trust are not cross-defaulted or

cross-collateralized to any property not owned directly or indirectly by the

Transaction Entities or any of their subsidiaries.

 

      Y. INSURANCE. Except as described or referred to in the Prospectus, at the

First Closing Date, the Operating Partnership and any Subsidiary that owns, or

leases under ground leases, real property will have obtained title insurance on

the fee interests (or leasehold interests) in each of the Properties and other

insurance covering such risks and in amounts that are commercially reasonable

for the assets owned by them, and in each case such title insurance and other

insurance is (or will be) in full force and effect. Neither the Transaction

Entities nor any of the Subsidiaries has any reason to believe that any of them

will not be able to obtain or renew its existing insurance coverage as and when

required by the preceding or as and when such coverage expires or to obtain

similar coverage from similar insurers as may be necessary to continue its

business.

 

      Z. ENVIRONMENTAL MATTERS. Except as otherwise disclosed in the Prospectus

or in the Phase I Environmental Audits previously delivered or made available to

the Underwriters or their counsel (the "ENVIRONMENTAL AUDITS"),

 

 

                                       -13-

<PAGE>

            (1) none of the Transaction Entities, any of the Subsidiaries nor,

      to the best knowledge of the Transaction Entities, any other owners of

      each Property at any time or any other party has at any time handled,

      stored, treated, transported, manufactured, transferred or otherwise dealt

      with, Hazardous Materials (as hereinafter defined) on, to or from the

      Properties, other than by any such action taken in compliance with all

      applicable Environmental Laws;

 

            (2) none of the Transaction Entities, any of the Subsidiaries nor,

      to the best knowledge of the Transaction Entities, any other owners of

      each Property at any time or any other party has at any time spilled,

      leaked, discharged, dumped, released, or otherwise disposed of Hazardous

      Materials on, to or from the Properties, except where such events would

      not reasonably be expected to have, individually or in the aggregate, a

      Material Adverse Effect;

 

             (3) the Transaction Entities do not intend to use the Properties or

      any subsequently acquired properties, or to lease the Properties or any

      subsequently acquired properties to any party that will use such

      Properties or any subsequently acquired properties, for the purpose of

      handling, storing, treating, transporting, manufacturing, transferring or

      otherwise dealing with Hazardous Materials other than by any such action

      taken in compliance with all applicable Environmental Laws;

 

            (4) the Transaction Entities do not intend to use the Properties or

      any subsequently acquired properties, or to lease the Properties or any

      subsequently acquired properties to any party that will use such

      Properties or any subsequently acquired properties, for the purpose of

      spilling, leaking, releasing, discharging, dumping, or otherwise disposing

      of Hazardous Materials on or from such Properties;

 

            (5) none of the Transaction Entities nor any of the Subsidiaries

      knows of any seepage, leak, discharge, release, emission, spill, or

      dumping of Hazardous Materials into soil or waters (including, but not

      limited to, groundwater and surface water) on or adjacent to the

      Properties or any other real property owned or occupied by any such party,

      or onto lands from which Hazardous Materials might seep, flow or drain

      into such waters, except where such events would not reasonably be

      expected to have, individually or in the aggregate, a Material Adverse

      Effect;

 

            (6) none of the Transaction Entities nor any of the Subsidiaries has

      received any notice of or is aware of any receipt by any other party of a

      notice of, or has any knowledge of any occurrence or circumstance that

      would give rise to a claim under or pursuant to any Environmental Law,

      pertaining to Hazardous Materials on or originating from any of the

      Properties or any assets described in the Prospectus (or, the most recent

      preliminary Prospectus) or any other real property owned or occupied by

      any such party or arising out of the conduct of any such party, including

      without limitation a claim under or pursuant to any Environmental Law (as

       hereinafter defined);

 

            (7) none of the Transaction Entities nor any of the Subsidiaries has

      (A) been notified that it is potentially liable under or (B) received any

      requests for information or other correspondence concerning any site or

      facility under, nor has, to the best knowledge

 

 

                                      -14-

<PAGE>

      of the Transaction Entities, any seller of the Acquisition Properties,

      received any notice that it is considered potentially liable under CERCLA

      or any similar law;

 

            (8) none of the Properties are included or, to the best of the

      Transaction Entities' knowledge, proposed for inclusion on the National

      Priorities List issued pursuant to CERCLA (as hereinafter defined) by the

      United States Environmental Protection Agency (the "EPA") or, to the best

      of the Transaction Entities' knowledge, proposed for inclusion on any

      similar list or inventory issued pursuant to any other Environmental Law

       or issued by any other Governmental Authority (as hereinafter defined);

 

            (9) the Transaction Entities do not intend to use the Properties or

      other assets owned by the Transaction Entities or their Subsidiaries other

      than in compliance with applicable Environmental Laws;

 

            (10) to the knowledge of the Transaction Entities, the Properties

      contain no above-ground and underground storage tanks, oil/water

      separators, sumps, or septic systems; and

 

            (11) (a) to the knowledge of the Transaction Entities, no building

      or other improvement located on the Properties contains any asbestos or

      asbestos-containing materials; (b) to the knowledge of the Transaction

      Entities, all asbestos or asbestos-containing materials are managed,

      handled, treated, and removed in compliance with Environmental Law; and

      (c) the Transaction Entities do not intend to manage, handle, treat, or

      remove asbestos other than in compliance with Environmental Law.

 

      As used herein, "HAZARDOUS MATERIAL" means any chemical, substance, waste,

material, pollutant, contaminant, equipment or fixture defined as or deemed

hazardous or toxic or otherwise regulated under any Environmental Law,

including, without limitation, RCRA hazardous wastes, CERCLA hazardous

substances, pesticides and other agricultural chemicals, oil and petroleum

products or byproducts and any constituents thereof, urea formaldehyde

insulation, lead in paint or drinking water, asbestos, and polychlorinated

biphenyls (PCBs).

 

      As used herein, "ENVIRONMENTAL LAWS" means all codes, laws (including,

without limitation, common law), ordinances, regulations, reporting or licensing

requirements, rules, or statutes in effect as of the Effective Date relating to

pollution or protection of human health or the environment (including ambient

air, surface water, ground water, land surface, or subsurface strata),

including, without limitation (i) the Comprehensive Environmental Response

Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"); (ii)

the Solid Waste Disposal Act, as amended by the Resource Conservation and

Recovery Act, 42 U.S.C.Section 6901 et seq., ("RCRA"); (iii) the Emergency

Planning and Community Right to Know Act (42 U.S.C.Section 11001 et seq.); (iv)

the Clean Air Act (42 U.S.C.Section 7401 et seq.); (v) the Clean Water Act (33

U.S.C.Section 1251 et seq.); (vi) the Toxic Substances Control Act (15

U.S.C.Section 2601 et seq.); (vii) the Hazardous Materials Transportation Act

(49 U.S.C.Section 5101 et seq.); (viii) the Safe Drinking Water Act (41

U.S.C.Section 300f et seq.); (ix) any state, county, municipal or local statues,

laws or ordinances similar or analogous to the federal statutes listed in parts

(i) through (viii), inclusive, of this subparagraph, (x) any amendments to the

statutes, laws or ordinances listed in parts (i)

 

 

                                      -15-

<PAGE>

through (ix), inclusive of this subparagraph, (xi) any rules, regulations,

enforceable guidelines or directives, orders or the like adopted pursuant to or

implementing the statutes, laws, ordinances and amendments listed in parts (i)

through (xi), inclusive, of this subparagraph; and (xii) any other law, statute,

ordinance, amendment, rule, regulation, guideline, directive, order or the like

relating to environmental, health or safety matters.

 

      As used herein, a "GOVERNMENTAL AUTHORITY" means any federal, state, or

local governmental authority having or claiming jurisdiction over the properties

and assets described in the Prospectus.

 

      AA. INDEPENDENCE OF ENVIRONMENTAL CONSULTANTS. None of the environmental

consultants that prepared the Environmental Audits with respect to any of the

Properties was employed for such purpose on a contingent basis or has any

substantial interest (contingent or otherwise) in the Transaction Entities or

any of their Subsidiaries (including any predecessor entity), and none of them

nor any of their directors, officers or employees is connected with the

Transaction Entities or any of their Subsidiaries (or any of their predecessor

entities) as a promoter, selling agent, voting trustee, director, officer or

employee.

 

      BB. NYSE LISTING APPROVAL. The Offered Securities have been approved for

listing on the NYSE subject to official notice of issuance.

 

      CC. LABOR RELATIONS. With respect to employees of the Transaction Entities

or any Subsidiary, no labor dispute exists or, to the knowledge of the

Transaction Entities, is imminent that would reasonably be expected to have,

individually or in the aggregate, a Material Adverse Effect.

 

      DD. INTELLECTUAL PROPERTY RIGHTS. The Transaction Entities and their

subsidiaries own, possess or can acquire on reasonable terms, adequate

trademarks, trade names and other rights to inventions, know-how, patents,

copyrights, confidential information and other intellectual property

(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business

now operated or presently intended to be operated by them, or presently employed

by them, and have not received any notice of infringement of or conflict with

asserted rights of others with respect to any Intellectual Property Rights that,

if determined adversely to the Transaction Entities or any of their

subsidiaries, would reasonably be expected to have, individually or in the

aggregate, a Material Adverse Effect.

 

      EE. NO PROCEEDINGS. Except as disclosed in the Prospectus, there are no

pending actions, suits or proceedings against or affecting the Transaction

Entities, any of the Subsidiaries or any of the Properties or other assets that,

if determined adversely to the Transaction Entities or any of the Subsidiaries,

would reasonably be expected to have, individually or in the aggregate, a

Material Adverse Effect, or would materially and adversely affect the ability of

the Transaction Entities to perform their obligations under this Agreement; and

no such actions, suits or proceedings are threatened or, to the Transaction

Entities' knowledge, contemplated.

 

      FF. NO MATERIAL ADVERSE CHANGE; NO MATERIAL TRANSACTIONS. Except as

disclosed in the Prospectus, since the date of the latest audited financial

statements included in the Prospectus (1) there has been no material adverse

change, nor any development or event

 

 

                                      -16-

<PAGE>

involving a prospective material adverse change, individually or in the

aggr