BIOMED REALTY, L.P. Registration Rights Agreement
EXHIBIT
10.1
EXECUTION COPY
BIOMED REALTY, L.P.
4.50% Exchangeable Senior Notes Due 2026
September 25, 2006
Credit Suisse Securities (USA) LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the Initial Purchasers
c/o Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
c/o Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
BioMed Realty, L.P. , a limited partnership organized under the laws of the State of Maryland
(the “Operating Partnership”), proposes to issue and sell to certain purchasers (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as representatives, its 4.50%
Exchangeable Senior Notes Due 2026 (the “Notes”), upon the terms set forth in the Purchase
Agreement by and among the Operating Partnership, BioMed Realty Trust, Inc., a corporation
organized under the laws of the State of Maryland (the “Company”), and the Representatives, dated
September 20, 2006 (the “Purchase Agreement”), relating to the initial placement (the “Initial
Placement”) of the Notes. In certain circumstances, the Notes will be exchangeable for shares of
common stock, $0.01 par value (the “Common Stock”), of the Company in accordance with the terms of
the Notes and the Indenture (as defined below). The Company will fully and unconditionally
guarantee the payment by the Operating Partnership of principal of and interest on the Notes. To
induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy obligations
thereunder, the holders of the Notes will have the benefit of this registration rights agreement by
and among the Operating Partnership, the Company and the Initial Purchasers whereby the Company
agrees with you for your benefit and the benefit of the holders from time to time of the Notes
(including the Initial Purchasers) (each a “Holder” and, collectively, the “Holders”), as follows:
1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative thereto.
“Automatic Shelf Registration Statement” shall mean a Registration Statement filed by a
Well-Known Seasoned Issuer which shall become effective upon filing thereof pursuant to General
Instruction I.D for Form S-3.
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
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“Closing Date” shall mean the date of the first issuance of the Notes.
“Common Stock” shall have the meaning set forth in the preamble.
“Commission” shall mean the Securities and Exchange Commission.
“Deferral Period” shall have the meaning indicated in Section 3(i) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Exchange Price” shall have the meaning specified in the Indenture.
“Final Memorandum” shall mean the offering memorandum, dated September 20, 2006, relating to
the Notes, including any and all annexes thereto and any information incorporated by reference
therein as of such date.
“Holder” shall have the meaning set forth in the preamble hereto.
“Indenture” shall mean the Indenture relating to the Notes, dated as of September 25, 2006, by
and among the Operating Partnership, the Company, as guarantor, and U.S. Bank National Association
as trustee, as the same may be amended from time to time in accordance with the terms thereof.
“Initial Placement” shall have the meaning set forth in the preamble hereto.
“Initial Purchasers” shall have the meaning set forth in the preamble hereto.
“Losses” shall have the meaning set forth in Section 5(d) hereof.
“Majority Holders” shall mean, on any date, Holders of a majority of the Common Stock
registered under the Shelf Registration Statement.
“Managing Underwriters” shall mean the investment banker or investment bankers and manager or
managers that administer an underwritten offering, if any, conducted pursuant to Section 6 hereof.
“NASD Rules” shall mean the Conduct Rules and the By-Laws of the National Association of
Securities Dealers, Inc.
“Notes” shall have the meaning set forth in the preamble.
“Notice and Questionnaire” shall mean a written notice delivered to the Company substantially
in the form attached as Annex A to the Final Memorandum.
“Notice Holder” shall mean, on any date, any Holder of Registrable Securities that has
delivered a properly completed Notice and Questionnaire to the Company on or prior to such date.
“Prospectus” shall mean a prospectus included in the Shelf Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A or Rule 430B under
the Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Common Stock covered by the Shelf Registration Statement, and all amendments and supplements thereto,
including any and all exhibits thereto and any information incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble hereto.
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“Registrable Securities” shall mean shares of Common Stock initially issuable in exchange for
the Notes initially sold to the Initial Purchasers pursuant to the Purchase Agreement other than
those that have (i) been registered under the Shelf Registration Statement and disposed of in
accordance therewith, (ii) become eligible to be sold without restriction as contemplated by Rule
144(k) under the Act or any successor rule or regulation thereto that may be adopted by the
Commission, (iii) ceased to be outstanding, whether as a result of redemption, repurchase,
cancellation, exchange or otherwise, or (iv) been sold to the public pursuant to Rule 144 under the
Act.
“Registration Default Damages” shall have the meaning set forth in Section 7 hereof.
“Shelf Registration Period” shall have the meaning set forth in Section 2(c) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company
pursuant to the provisions of Section 2 hereof which covers some or all of the Common Stock on an
appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“underwriter” shall mean any underwriter of Common Stock in connection with an offering
thereof under the Shelf Registration Statement.
“Well-Known Seasoned Issuer” or “WKSI” shall have the meaning set forth in Rule 405 under the
Act.
2. Shelf Registration. (a) The Company shall as promptly as practicable (but in no
event more than 180 days after the Closing Date) file with the Commission a Shelf Registration
Statement (which shall be, if the Company is then a WKSI, an Automatic Shelf Registration
Statement) providing for the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, from time to time in accordance with the methods of
distribution elected by such Holders, pursuant to Rule 415 under the Act or any similar rule that
may be adopted by the Commission.
(b) If the Shelf Registration Statement is not an Automatic Shelf Registration Statement, the
Company shall use its reasonable efforts to cause the Shelf Registration Statement to become or be
declared effective under the Act no later than 180 days after the Closing Date.
(c) The Company shall use its reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period (the “Shelf Registration
Period”) from the date the Shelf Registration Statement is declared effective by the Commission (or
becomes effective in the case of an Automatic Shelf Registration Statement) until the earlier of
(i) the 20 th trading day immediately following the maturity date of the Notes
or (ii) the date upon which there are no Notes or Registrable Securities outstanding. The Company
shall be deemed not to have used its reasonable efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if it voluntarily takes any action that would result
in Holders of Registrable Securities not being able to offer and sell such Common Stock at any time
during the Shelf Registration Period, unless such action is (x) required by applicable law or
otherwise undertaken by the Company in good faith and for valid business reasons (not including
avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of
assets, and (y) permitted by Section 3(i) hereof. None of the Company, the Operating Partnership
or any of their respective securityholders (other than Holders of Registrable Securities) shall
have the right to include any securities of the Company or the Operating Partnership in any Shelf
Registration Statement other than Registrable Securities.
(d) The Company shall cause the Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (i) to comply in all material respects with the applicable
requirements of the Act; and (ii) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein (in the case of the Prospectus, in the light of the circumstances under which they were
made) not misleading.
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(e) The Company shall issue a press release through a reputable national newswire service
announcing the anticipated effective date of the Shelf Registration Statement at least 15 Business
Days prior to the anticipated effective date thereof. Each Holder of Registrable Securities agrees
to deliver a Notice and Questionnaire and such other information as the Company may reasonably
request in writing, if any, to the Company at least ten Business Days prior to the anticipated
effective date of the Shelf Registration Statement as announced in the press release. If a Holder
does not timely complete and deliver a Notice and Questionnaire or provide the other information
the Company may request, that Holder will not be named as a selling securityholder in the
Prospectus and will not be permitted to sell its securities under the Shelf Registration Statement.
From and after the effective date of the Shelf Registration Statement, the Company shall use
reasonable efforts, as promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within 20 Business Days after such date, (i) if required by applicable
law, to file with the Commission a post-effective amendment to the Shelf Registration Statement;
and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use
reasonable efforts to cause such post-effective amendment to be declared effective under the Act as
promptly as is practicable; provided, that the Company shall not be required to file more
than one post-effective amendment in any 90-day period in accordance with this Section 2(e)(i) or
to prepare and, if permitted or required by applicable law, to file a supplement to the related
Prospectus or an amendment or supplement to any document incorporated therein by reference or file
any other required document so that the Holder delivering such Notice and Questionnaire is named as
a selling securityholder in the Shelf Registration Statement and the related Prospectus, and so
that such Holder is permitted to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law; (ii) provide such Holder, upon request, copies of any
documents filed pursuant to Section 2(e)(i) hereof; and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Act of any post-effective amendment filed pursuant to
Section 2(e)(i) hereof; provided, that if such Notice and Questionnaire is delivered during
a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the
Deferral Period in accordance with Section 3(i) hereof. Notwithstanding anything contained herein
to the contrary, the Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in the Shelf Registration Statement or related Prospectus;
provided, however, that any Holder that becomes a Notice Holder pursuant to the
provisions of this Section 2(e) (whether or not such Holder was a Notice Holder at the effective
date of the Shelf Registration Statement) shall be named as a selling securityholder in the Shelf
Registration Statement or related Prospectus in accordance with the requirements of this Section
2(e). Notwithstanding the foregoing, if (A) the Notes are called for redemption and the then
prevailing market price of the Common Stock is above the Exchange Price or (B) the Notes are
exchanged as provided for in Section 13.01(i), 13.01(ii) or 13.01(iv) of the Indenture, then the
Company shall use reasonable efforts to file the post-effective amendment or supplement within five
Business Days of the rede
mption date or the end of the exchange period, as applicable.
3. Registration Procedures. The following provisions shall apply in connection with
the Shelf Registration Statement.
(a) The Company shall:
(i) furnish to each of the Representatives and to counsel for the Notice Holders (as
appointed in accordance with Section 4), not less than five Business Days prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement and each
amendment thereto and each amendment or supplement, if any, to the Prospectus included
therein (including all documents incorporated by reference therein after the initial filing)
and shall use its reasonable efforts to reflect in each such document, when so filed with
the Commission, such comments as the Representatives reasonably propose; and
(ii) include information regarding the Notice Holders and the methods of distribution
they have elected for their Registrable Securities provided to the Company in Notices and
Questionnaires as necessary to permit such distribution by the methods specified therein.
(b) The Company shall ensure that:
(i) the Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all material
respects with the Act; and
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(ii) the Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, 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.
(c) The Company shall advise the Representatives, the Notice Holders and any underwriter that
has provided in writing to the Company a telephone or facsimile number and address for notices, and
confirm such advice in writing, if requested (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall
have remedied the basis for such suspension):
(i) when the Shelf Registration Statement and any amendment thereto has been filed with
the Commission and when the Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for any amendment or supplement to the Shelf
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement or the institution or threatening of any proceeding for
that purpose;
(iv) of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Common Stock included therein for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Shelf Registration
Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue
statement of a material fact and (B) do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the Prospectus,
in the light of the circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of the Shelf Registration Statement or the qualification of the
securities therein for sale in any jurisdiction and, if issued, to obtain as soon as possible the
withdrawal thereof. The Company shall undertake additional reasonable actions as required to
permit unrestricted resales of the Common Stock in accordance with the terms and conditions of this
Agreement.
(e) Upon request, the Company shall furnish to each Notice Holder, without charge, at least
one copy of the Shelf Registration Statement and any post-effective amendment thereto, including
all material incorporated therein by reference, and, if a Notice Holder so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(f) During the Shelf Registration Period, the Company shall promptly deliver to each Initial
Purchaser, each Notice Holder, and any sales or placement agents or underwriters acting on their
behalf, without charge, as many copies of the Prospectus (including the preliminary Prospectus, if
any) included in the Shelf Registration Statement and any amendment or supplement thereto as any
such person may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by each
of the foregoing in connection with the offering and sale of the Common Stock.
(g) Prior to any offering of Common Stock pursuant to the Shelf Registration Statement, the
Company shall use reasonable best efforts to arrange for the qualification of the Common Stock for
sale under the laws of such jurisdictions as any Notice Holder shall reasonably request and shall
maintain such qualification in effect so long as required; provided that in no event shall the
Company be obligated to qualify to do business or as a dealer in any jurisdiction where it is not
then so qualified or to take any action that would subject it to service of process in suits, other
than those arising out of the Initial Placement or any offering pursuant to the Shelf Registration
Statement, in any jurisdiction where it is not then so subject.
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(h) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v) above,
the Company shall promptly (or within the time period provided for by Section 3(i) hereof, if
applicable) prepare a post-effective amendment to the Shelf Registration Statement or an amendment
or supplement to the related Prospectus or file any other required document so that, as thereafter
delivered to Initial Purchasers of the securities included therein, the Prospectus will not include
an 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, in the light of the circumstances under which
they were made, not misleading.
(i) Upon the occurrence or existence of any pending corporate development, public filings with
the Commission or any other material event that, in the reasonable judgment of the Company, makes
it appropriate to suspend the availability of the Shelf Registration Statement and the related
Prospectus, the Company shall give notice (without notice of the nature or details of such events)
to the Notice Holders that the availability of the Shelf Registration Statement is suspended and,
upon actual receipt of any such notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such Notice Holder’s receipt of
copies of the supplemented or amended Prospectus provided for in Section 3(h) hereof, or until it
is advised in writing by the Company that the Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated or deemed incorporated by reference in
such Prospectus. The period during which the availability of the Shelf Registration Statement and
any Prospectus is suspended (the “Deferral Period”) shall not exceed 45 days in any 90-day period
or 90 days in any 360-day period; provided, that, if the event triggering the
Deferral Period relates to a proposed or pending material business transaction, the disclosure of
which the board of directors of the Company determines in good faith would be reasonably likely to
impede the ability to consummate the transaction or would otherwise be seriously detrimental to the
Company and its subsidiaries taken a whole, the Company may extend the Deferral Period from 45 days
to 60 days in any 90-day period or from 90 days to 120 days in any 360-day period.
(j) The Company shall comply with all applicable rules and regulations of the Commission and
shall make generally available to its securityholders an earnings statement satisfying the
provisions of Section 11(a) and Rule 158 of the Act as soon as practicable after the effective date
of the Shelf Registration Statement and in any event no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the
Company’s first fiscal quarter commencing after the effective date of the Shelf Registration
Statement.
(k) The Company may require each Holder of Common Stock to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the Holder and the
distribution of such Common Stock as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement. The Company may exclude from the Shelf Registration
Statement the Common Stock of any Holder that unreasonably fails to furnish such information within
15 days after receiving such request.
(l) Subject to Section 6 hereof, the Company shall enter into customary agreements (including,
if requested, an underwriting agreement in customary form) and take all other appropriate actions
in order to expedite or facilitate the registration or the disposition of the Common Stock, and in
connection therewith, if an underwriting agreement is entered into, cause the same to contain
customary indemnification provisions and procedures.
(m) Subject to Section 6 hereof, the Company shall:
(i) make reasonably available for inspection by the Holders of Common Stock to be
registered thereunder, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other records and pertinent
corporate documents of the Company and its subsidiaries;
(ii) cause the Company’s officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration Statement as is
customary for similar due diligence examinations;
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(iii) make such representations and warranties to the Holders of Common Stock
registered thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain “comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be, included in the
Shelf Registration Statement), addressed to each selling Holder of Common Stock registered
thereunder and the underwriters, if any, in customary form and covering matters of the type
customarily covered in “comfort” letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be reasonably requested by the
Majority Holders or the Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) hereof and with any customary conditions (including without
limitation lock-up agreements with directors and officers) contained in the underwriting
agreement or other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (m) shall be performed
in connection with any underwriting or similar agreement as and to the extent required thereunder.
(n) In the event that any Broker-Dealer shall underwrite any Common Stock or participate as a
member of an underwriting syndicate or selling group or “assist in the distribution” (within the
meaning of the NASD Rules) thereof, whether as a Holder of such Common Stock or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company
shall assist such Broker-Dealer in complying with the NASD Rules.
(o) The Company shall use its reasonable efforts to take all other steps necessary to effect
the registration of the Common Stock covered by the Shelf Registration Statement.
4. Registration Expenses. The Company shall bear all expenses incurred in connection
with the performance of its obligations under Sections 2 and 3 hereof and shall reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel (which, if appointed,
shall be a nationally recognized law firm experienced in securities matters designated by the
Majority Holders) to act as counsel for the Holders in connection therewith.
5. Indemnification and Contribution. (a) The Company and the Operating Partnership agree to indemnify and hold harmless each
Holder of Common Stock covered by the Shelf Registration Statement, each Initial Purchaser, the
directors, officers, employees, Affiliates and agents of each such Holder or Initial Purchaser and
each person who controls any such Holder or Initial Purchaser within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any preliminary Prospectus or the
Prospectus, in the light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such loss, claim,
damage,
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liability or action; provided, however, that the Company and the Operating
Partnership will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the party claiming indemnification
specifically for inclusion therein. This indemnity agreement shall be in addition to any liability
that the Company and the Operating Partnership may otherwise have to the indemnified party.
The Company and the Operating Partnership also agree to indemnify as provided in this Section
5(a) or contribute as provided in Section 5(d) hereof to Losses of each underwriter, if any, of
Common Stock registered under the Shelf Registration Statement, its directors, officers, employees,
Affiliates or agents and each person who controls such underwriter on substantially the same basis
as that of the indemnification of the Initial Purchasers and the selling Holders provided in this
paragraph (a) and shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(l) hereof.
(b) Each Holder of securities covered by the Shelf Registration Statement (including each
Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify
and hold harmless the Company and the Operating Partnership, each of its directors, each of its
officers who signs the Shelf Registration Statement and each person who controls the Company or the
Operating Partnership within the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company and the Operating Partnership to each such Holder, but
only with reference to written information relating to such Holder furnished to the Company by or
on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is not an
Initial Purchaser in such Notice Holder’s Notice and Questionnaire and shall be in addition to any
liability that any such Notice Holder may otherwise have to the Company or the Operating
Partnership.
(c) Promptly after receipt by an indemnified party under this Section 5 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel, other than local counsel if not appointed by the indemnifying
party, retained by the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to
represent the indemnified party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in respect of which
any indemnified party is or could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such action, (ii)
does not include a statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party, and (iii) does not include any undertaking or obligation to
act or to refrain from acting by the indemnified party.
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(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 5 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending loss, claim, liability, damage or action)
(collectively “Losses”) to which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, from the Initial Placement and the Shelf
Registration Statement which resulted in such Losses; provided, however, that in no
case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to the Notes, as set forth in the Final Memorandum, nor
shall any underwriter be responsible for any amount in excess of the underwriting discount or
commission applicable to the securities purchased by such underwriter under the Shelf Registration
Statement which resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the Company and the Operating
Partnership shall be deemed to be equal to the total net proceeds from the Initial Placement
(before deducting expenses) as set forth in the Final Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and commissions, and
benefits received by any other Holders shall be deemed to be equal to the value of receiving Common
Stock registered under the Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes
of this Section 5, each person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company or the Operating
Partnership within the meaning of either the Act or the Exchange Act, each officer of the Company
or the Operating Partnership who shall have signed the Shelf Registration Statement and each
director of the Company or the Operating Partnership shall have the same rights to contribution as
the Company and the Operating Partnership, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The
provisions of this Section 5 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or the Company or the Operating Partnership or any
of the indemnified persons referred to in this Section 5, and shall survive the sale by a Holder of
securities covered by the Shelf Registration Statement.
6. Underwritten Registrations. (a) In no event will the method of distribution of
Registrable Securities take the form of an underwritten offering without the prior written consent
of the Company.
(b) If any shares of Common Stock covered by the Shelf Registration Statement are to be sold
in an underwritten offering, the Managing Underwriters shall be selected by the Company, subject to
the prior written consent of the Majority Holders, which consent shall not be unreasonably
withheld.
(c) No person may participate in any underwritten offering pursuant to the Shelf Registration
Statement unless such person (i) agrees to sell such person’s shares of Common Stock on the basis
reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements; and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required under the terms of
such underwriting arrangements.
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7. Registration Defaults. If any of the following events shall occur, then the
Company shall pay liquidated damages (the “Registration Default Damages”) to the Holders as
follows:
(a) if the Shelf Registration Statement (which shall be, if the Company is then a WKSI, an
Automatic Shelf Registration Statement) is not filed with the Commission on or prior to the 180th
day following the Closing Date, then commencing on the 181st day after the Closing Date,
Registration Default Damages shall accrue on the aggregate outstanding principal amount of the
Notes, at a rate of 0.25% per annum for the first 90 days from and including such 181st day and
0.50% per annum thereafter; or
(b) if the Shelf Registration Statement is not declared effective by the Commission (or has
not become effective in the case of an Automatic Shelf Registration Statement) on or prior to the
180th day following the Closing Date, then commencing on the 181st day after the Closing Date,
Registration Default Damages shall accrue on the aggregate outstanding principal amount of the
Notes, at a rate of 0.25% per annum for the first 90 days from and including such 181st day and
0.50% per annum thereafter; or
(c) if the Shelf Registration Statement has been declared or become effective but ceases to be
effective or usable for the offer and sale of the Registrable Securities, other than in connection
with (A) a Deferral Period or (B) as a result of a requirement to file a post-effective amendment
or supplement to the Prospectus to make changes to the information regarding selling
securityholders or the plan of distribution provided for therein, at any time during the Shelf
Registration Period and the Company does not cure the lapse of effectiveness or usability within
ten Business Days (or, if a Deferral Period is then in effect and subject to the 20 Business Day
filing requirement and the proviso regarding the filing of post-effective amendments in Section
2(e) with respect to any Notice and Questionnaire received during such period, within ten Business
Days following the expiration of such Deferral Period or period permitted pursuant to Section 2(e))
then Registration Default Damages shall accrue on the aggregate outstanding principal amount of the
Notes at a rate of 0.25% per annum for the first 90 days from and including the day following such
tenth Business Day and 0.50% per annum thereafter; or
(d) if the Company through its omission fails to name as a selling securityholder any Holder
that had complied timely with its obligations hereunder in a manner to entitle such Holder to be so
named in (i) the Shelf Registration Statement at the time it first became effective or (ii) any
Prospectus at the later of time of filing thereof or the time the Shelf Registration Statement of
which the Prospectus forms a part becomes effective then Registration Default Damages shall accrue,
on the aggregate outstanding principal amount of the Notes held by such Holder, at a rate of 0.25%
per annum for the first 90 days from and including the day following the effective date of such
Shelf Registration Statement or the time of filing of such Prospectus, as the case may be, and
0.50% per annum thereafter; or
(e) if the aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof, then commencing on the day the
aggregate duration of Deferral Periods in any period exceeds the number of days permitted in
respect of such period, Registration Default Damages shall accrue on the aggregate outstanding
principal amount of the Notes at a rate of 0.25% per annum for the first 90 days from and including
such date, and 0.50% per annum thereafter;
provided, however, that (1) upon the filing of the Shelf Registration Statement (in
the case of paragraph (a) above), (2) upon the effectiveness of the Shelf Registration Statement
(in the case of paragraph (b) above), (3) upon such time as the Shelf Registration Statement which
had ceased to remain effective or usable for resales again becomes effective and usable for resales
(in the case of paragraph (c) above), (4) upon the time such Holder is permitted to sell its
Registrable Securities pursuant to any Shelf Registration Statement and Prospectus in accordance
with applicable law (in the case of paragraph (d) above) or (5) upon the termination of the
Deferral Period that caused the limit on the aggregate duration of Deferral Periods in a period set
forth in Section 3(i) to be exceeded (in the case of paragraph (f) above), the Registration Default
Damages shall cease to accrue.
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Any amounts of Registration Default Damages due pursuant to this Section 7 will be payable in
cash on the next succeeding interest payment date to Holders entitled to receive such Registration
Default Damages on the relevant record dates for the payment of interest. If any Note ceases to be
outstanding during any period for which Registration Default Damages are accruing, the Company will
prorate the Registration Default Damages payable with respect to such Note.
The Registration Default Damages rate on the Notes shall not exceed in the aggregate 0.50% per
annum and shall not be payable under more than one clause above for any given period of time,
except that if Registration Default Damages would be payable because of more than one Registration
Default, but at a rate of 0.25% per annum under one Registration Default and at a rate of 0.50% per
annum under the other, then the Registration Default Damages rate shall be the higher rate of 0.50%
per annum. Other than the Company’s obligation to pay Registration Default Damages in accordance
with this Section 7, neither the Company nor the Operating Partnership will have any liability for
damages with respect to a Registration Default.
Notwithstanding any provision in this Agreement, in no event shall Registration Default
Damages accrue to holders of Common Stock issued upon exchange of Notes. In lieu thereof, the
Company shall increase the Exchange Rate (as defined in the Indenture) by 3% for each $1,000
principal amount of Notes exchanged at a time when such Registration Default has occurred and is
continuing.
The sole remedy for any violation of any obligations the Company may be deemed to have
pursuant to Section 314(a)(1) of the Trust Indenture Act shall be the accrual of Registration
Default Damages (as defined in the Indenture) on the Notes at a rate of 0.25% per annum based on
the number of days of the relevant interest period on which the Company or the Operating
Partnership is deemed to be in violation of such section. In no event shall Registration Default
Damages accrue on the Notes at a per annum rate in excess of 0.50% per annum pursuant to both the
Indenture and this Registration Rights Agreement, taken together, regardless of the number of
events or circumstances giving rise to the requirement to pay such Registration Default Damages.
8. No Inconsistent Agreements. Neither the Company nor the Operating Partnership has
entered into, and each agrees not to enter into, any agreement with respect to its securities that
is inconsistent with the registration rights granted to the Holders herein.
9. Rule 144A and Rule 144. So long as any Registrable Securities remain outstanding,
the Company shall use its reasonable best efforts to file the reports required to be filed by it
under Rule 144A(d)(4) under the Act and the Exchange Act in a timely manner and, if at anytime the
Company is not required to file such reports, it will, upon the written request of any Holder of
Registrable Securities, make publicly available other information so long as necessary to permit
sales of such Holder’s Registrable Securities pursuant to Rules 144 and 144A of the Act. The
Company covenants that it will take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Act within the limitation of the exemptions provided by
Rules 144 and 144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Registrable Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 9 shall be deemed to require the Company or the Operating
Partnership to register any of its securities pursuant to the Exchange Act.
10. Listing. So long as any Registrable Securities are outstanding, the Company shall
use its reasonable efforts to maintain the approval of the Registrable Securities for listing on
the New York Stock Exchange or such other exchange or trading market as the Common Stock is then
listed.
11. Amendments and Waivers. The provisions of this Agreement may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of the Majority
Holders; provided that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to
be effective; provided, further, that no amendment, qualification, supplement,
waiver or consent with respect to Section 7 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder; and provided,
further, that the provisions of this Article 11 may not be amended, qualified,
11
modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of the Initial Purchasers and each Holder.
12. Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier
guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to the Company in
accordance with the provisions of the Notice and Questionnaire;
(b) if to the Initial Purchasers or the Representatives, initially at the address or addresses
set forth in the Purchase Agreement; and
(c) if to the Company or the Operating Partnership, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchasers, the Company or the Operating Partnership by notice to the other
parties may designate additional or different addresses for subsequent notices or communications.
Notwithstanding the foregoing, notices given to Holders holding Notes in book-entry form may
be given through the facilities of DTC or any successor depository.
13. Remedies. Each Holder, in addition to being entitled to exercise all rights
provided to it herein or in the Purchase Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its rights under this
Agreement. The Company and the Operating Partnership agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive in any action for specific performance
the defense that a remedy at law would be adequate.
14. Successors. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their respective successors and assigns, including, without the need for an express
assignment or any consent by the Company or the Operating Partnership thereto, subsequent Holders
of Registrable Securities, and the indemnified persons referred to in Section 5 hereof. The
Company and the Operating Partnership hereby agree to extend the benefits of this Agreement to any
Holder of Registrable Securities, and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
15. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
17. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York. The parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.
18. Severability. In the event that any one of more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
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19. Notes Held by the Company, etc. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Notes is required hereunder, Notes held by the Company
or its Affiliates (other than subsequent Holders of Notes if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required percentage.
13
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement by and among the Company, the Operating Partnership and the several
Initial Purchasers.
| Very truly yours, | ||||
| BioMed Realty Trust, Inc. | ||||
| By: | /s/ ▇▇▇▇ ▇. Gold | |||
| Name: ▇▇▇▇ ▇. Gold | ||||
| Title: Chief Executive Officer | ||||
| BioMed Realty, L.P. | ||||
| By: | BioMed Realty Trust, Inc., | |||
| its General Partner | ||||
| By: | /s/ ▇▇▇▇ ▇. Gold | |||
| Name: ▇▇▇▇ ▇. Gold | ||||
| Title: Chief Executive Officer | ||||
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Credit Suisse Securities (USA) LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
| Credit Suisse Securities (USA) LLC | ||||
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated | ||||
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Title: Executive Director | ||||
For themselves and the other several Initial Purchasers named in Schedule I to the Purchase
Agreement
Signature Page to Registration Rights Agreement
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