exv10w1





Exhibit
10.1

Execution Version




REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT dated as of April 29, 2010 (the “Agreement”) is entered
into by and among BioMed Realty, L.P., a Maryland limited partnership (the “Operating
Partnership”), BioMed Realty Trust, Inc., a Maryland corporation (the “Guarantor”), and Wells Fargo
Securities, LLC, Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as
representatives (the “Representatives”) of the several initial purchasers (the “Initial
Purchasers”).



     The Operating Partnership, the Guarantor and the Representatives on behalf of the Initial
Purchasers are parties to the Purchase Agreement dated April 22, 2010 (the “Purchase Agreement”),
which provides for the sale by the Operating Partnership to the Initial Purchasers of $250 million
aggregate principal amount of the Operating Partnership’s 6.125% Senior Notes due 2020 (the
“Securities”) which will be guaranteed on an unsecured basis by the Guarantor. As an inducement to
the Initial Purchasers to enter into the Purchase Agreement, the Operating Partnership and the
Guarantor have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under Section 5.I. of the Purchase Agreement.



     In consideration of the foregoing, the parties hereto agree as follows:



     1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:



     “Additional Interest” shall have the meaning set forth in Section 2(d) hereof.



     “Business Day” shall mean any day, other than a Saturday, Sunday or any other day on which
banking institutions in New York, New York are authorized or obligated by law or executive order to
close.



     “Closing Date” shall mean the Closing Time as defined in the Purchase Agreement.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.



     “Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.



     “Exchange Offer” shall mean the exchange offer by the Operating Partnership and the Guarantor
of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.



 









 





     “Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.



     “Exchange Offer Registration Period” shall mean the one-year period following the consummation
of the Exchange Offer, exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration Statement.



     “Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and any document incorporated by reference
therein.



     “Exchange Securities” shall mean senior notes issued by the Operating Partnership and
guaranteed by the Guarantor under the Indenture containing terms identical to the Securities
(except that the Exchange Securities will not be subject to restrictions on transfer or to any
increase in annual interest rate for failure to comply with this Agreement) and to be offered to
Holders of Registrable Securities in exchange for Securities pursuant to the Exchange Offer.



     “FINRA” shall mean the Financial Industry Regulatory Authority, Inc.



     “Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Operating Partnership or used or referred to by the
Operating Partnership in connection with the offer or sale of the Securities or the Exchange
Securities.



     “Guarantor” shall have the meaning set forth in the preamble and shall also include the
Guarantor’s successors.



     “Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and
5 of this Agreement, the term “Holders” shall include Participating Broker-Dealers.



     “Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.



     “Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.



     “Indenture” shall mean the Indenture relating to the Securities dated as of April 29, 2010,
among the Operating Partnership, the 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.



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     “Initial Purchasers” shall have the meaning set forth in the preamble.



     “Inspector” shall have the meaning set forth in Section 3(a)(xiii) hereof.



     “Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
the outstanding Registrable Securities; provided that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by the Operating Partnership or any of its affiliates (as
defined in Rule 405 under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage or amount; and provided,
further, that if the Operating Partnership shall issue any additional Securities under the
Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any
Shelf Registration Statement, such additional Securities and the Registrable Securities to which
this Agreement relates shall be treated together as one class for purposes of determining whether
the consent or approval of Holders of a specified percentage of Registrable Securities has been
obtained.



     “Operating Partnership” shall have the meaning set forth in the preamble and shall also
include the Operating Partnership’s successors.



     “Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.



     “Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.



     “Prospectus” shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus or 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 Securities Act, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any document incorporated
by reference therein.



     “Purchase Agreement” shall have the meaning set forth in the preamble.



     “Registrable Securities” shall mean the Securities; provided that the Securities shall cease
to be Registrable Securities (i) when a Registration Statement with respect to such Securities has
been declared effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144 (or any similar provision then



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in force, but not Rule 144A) under the Securities Act or (iii) when such Securities cease to
be outstanding.




     “Registration Default” shall have the meaning set forth in Section 2(d) hereof.



     “Registration Default Damages” shall have the meaning set forth in Section 2(d) hereof.



     “Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Operating Partnership and the Guarantor with this Agreement, including without
limitation: (i) all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for any Underwriters or Holders in connection with
blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, and any Free Writing Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or other similar
agreements and any other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of
the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Operating
Partnership and the Guarantor and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and
disbursements of the independent public accountants of the Operating Partnership and the Guarantor,
including the expenses of any special audits or “comfort” letters required by or incident to the
performance of and compliance with this Agreement, but excluding fees and expenses of counsel to
the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder.



     “Registration Statement” shall mean any registration statement of the Operating Partnership
and the Guarantor that covers any of the Exchange Securities or Registrable Securities pursuant to
the provisions of this Agreement and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference therein.



     “Registration Statement Default” shall have the meaning set forth in Section 2(d) hereof.



     “Representatives” shall have the meaning set forth in the preamble hereto.



     “SEC” shall mean the United States Securities and Exchange Commission.



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     “Securities” shall have the meaning set forth in the preamble hereto.



     “Securities Act” shall mean the Securities Act of 1933, as amended from time to time.



     “Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.



     “Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.



     “Shelf Registration Statement” shall mean a “shelf” registration statement of the Operating
Partnership and the Guarantor that covers all or a portion of the Registrable Securities (but no
other securities unless approved by the Holders whose Registrable Securities are to be covered by
such Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act,
or any similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by reference therein.



     “Shelf Registration Statement Default” shall have the meaning set forth in Section 2(d)
hereof.



     “Shelf Request” shall have the meaning set forth in Section 2(b) hereof.



     “Staff” shall mean the staff of the SEC.



     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.



     “Trustee” shall mean the trustee with respect to the Securities under the Indenture.



     “Underwriter” shall have the meaning set forth in Section 3(e) hereof.



     “Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.



     2. Registration Under the Securities Act. (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff, the Operating Partnership and the
Guarantor shall use their commercially reasonable efforts to (i) cause to be filed, not later than
180 days following the Closing Date, an Exchange Offer Registration Statement covering an offer to
the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause the
Exchange Offer Registration Statement to become effective under the Securities Act within 240 days
of the Closing Date, and (iii) have such Registration Statement remain continuously effective under
the Securities Act,



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supplemented and amended as required under the Act, during the Exchange Offer Registration
Period. The Operating Partnership and the Guarantor shall commence the Exchange Offer promptly
after the Exchange Offer Registration Statement is declared effective by the SEC and use their
commercially reasonable efforts to complete the Exchange Offer not later than 60 days after such
effective date.




     The Operating Partnership and the Guarantor shall commence the Exchange Offer by mailing the
related Prospectus, appropriate letters of transmittal and other accompanying documents to each
Holder stating, in addition to such other disclosures as are required by applicable law,
substantially the following:




	(i)	 	that the Exchange Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for exchange;
	 
	(ii)	 	the dates of acceptance for exchange (which shall be a period of at least 20 Business Days
from the date such notice is mailed) (each, an “Exchange Date” and collectively, the “Exchange
Dates”);
	 
	(iii)	 	that any Registrable Security not tendered will remain outstanding and continue to accrue
interest (but not any Additional Interest) but will not retain any rights under this
Agreement;
	 
	(iv)	 	that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange
Offer will be required to (A) surrender such Registrable Security, together with the
appropriate letters of transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B)
effect such exchange otherwise in compliance with the applicable procedures of the depositary
for such Registrable Security, in each case prior to the close of business on the last
Exchange Date; and
	 
	(v)	 	that any Holder will be entitled to withdraw its election, not later than the close of
business on the last Exchange Date, by (A) sending to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a statement that such
Holder is withdrawing its election to have such Securities exchanged, or (B) effecting such
withdrawal otherwise in compliance with the applicable procedures of the depositary for such
Registrable Security, in each case.





     As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Operating Partnership and the Guarantor that (i) any Exchange Securities to be received by
it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of
the Exchange Offer it has no arrangement or understanding with



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any Person to participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an
“affiliate” (within the meaning of Rule 405 under the Securities Act) of the Operating Partnership
or the Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities
for its own account in exchange for Registrable Securities that were acquired as a result of
market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the
extent permitted by law, make available a Prospectus to purchasers) in connection with any resale
of such Exchange Securities.




     As soon as practicable after the last Exchange Date, the Operating Partnership and the
Guarantor shall:




	(i)	 	accept for exchange Registrable Securities or portions thereof validly tendered and not
properly withdrawn pursuant to the Exchange Offer; and
	 
	(ii)	 	deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities
or portions thereof so accepted for exchange by the Operating Partnership and issue, and cause
the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in
principal amount to the principal amount of the Registrable Securities surrendered by such
Holder.





     The Operating Partnership and the Guarantor shall use their commercially reasonable efforts to
complete the Exchange Offer as provided above and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.



     (b) In the event that (i) the Operating Partnership and the Guarantor determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available or may not be
completed as soon as practicable after the last Exchange Date because it would violate any
applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any
other reason completed within 300 days following the Closing Date or (iii) upon receipt of a
written request (a “Shelf Request”) from any Initial Purchaser representing that it holds
Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the
Operating Partnership and the Guarantor shall use their commercially reasonable efforts to cause to
be filed as soon as practicable after such determination, date or request, as the case may be, but
in no event more than 30 days after such determination, date or request, a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the Holders thereof and to
have such Shelf Registration Statement declared effective by the SEC within 90 days after such
determination, date or request; provided that no Holder shall be entitled to have its Registrable
Securities covered by such Shelf Registration Statement unless such Holder has returned to the
Guarantor a completed and signed selling securityholder questionnaire in reasonable and customary
form by the reasonable deadline for responses set forth therein, which may include an agreement by
the Holder to be bound by the provisions of



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this Agreement applicable to such Holder, including the indemnification obligations herein.




     In the event that the Operating Partnership and the Guarantor are required to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence, the Operating
Partnership and the Guarantor shall use their commercially reasonable efforts to file and have
declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section
2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Securities held by the Initial Purchasers that were ineligible to
be exchanged in the Exchange Offer.



     The Operating Partnership and the Guarantor agree to use their commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective until the date which is one year
after the effective date of the Shelf Registration Statement or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The
Operating Partnership and the Guarantor further agree to supplement or amend the Shelf Registration
Statement and the related Prospectus and any Free Writing Prospectus if required by the rules,
regulations or instructions applicable to the registration form used by the Operating Partnership
for such Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable
Securities with respect to information relating to such Holder, and to use their commercially
reasonable efforts to cause any such amendment to become effective and such Shelf Registration
Statement, Prospectus and Free Writing Prospectus to become usable as soon as thereafter
practicable. The Operating Partnership and the Guarantor agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after its being used or
filed with the SEC.



     (c) The Operating Partnership and the Guarantor shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder
shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the
Shelf Registration Statement.



     (d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided by Rule 462 under the Securities Act.



     In the event that (i) any Registration Statement required by this Agreement is not filed with
the SEC on or prior to the date specified in this Agreement, (ii) any Registration Statement
required by this Agreement has not become effective on or prior



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to the date specified in this Agreement, or (iii) the Exchange Offer is not completed on or
prior to the date specified in this Agreement (each a “Registration Statement Default”), then the
interest rate on the Registrable Securities will be increased by 0.25% per annum for the first
90-day period thereafter, and the amount of such additional interest will increase by an additional
0.25% per annum for each subsequent 90-day period, up to a maximum of 0.50% per annum over the
original interest rate on the Securities (“Additional Interest”). At the time the Registration
Statements are filed or become effective, as applicable, or the Exchange Offer is consummated, the
interest rate on the Securities shall revert to the original interest rate on the Closing Date and
the Operating Partnership and the Guarantor shall no longer be required to pay Additional Interest.




     If the Shelf Registration Statement, if required hereby, (I) has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable at
any time during the Shelf Effectiveness Period, and such failure to remain effective or usable
exists for more than 30 days (whether or not consecutive) in any 12-month period, or (II) if the
Operating Partnership or the Guarantor through their 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 named in the Shelf Registration Statement or any Prospectus (each a
“Shelf Registration Statement Default” and together with the Registration Statement Default, the
“Registration Default”), then the interest rate on the Registrable Securities will be increased by
0.25% per annum for the first 90-day period thereafter, and the amount of such additional interest
will increase by an additional 0.25% per annum for each subsequent 90-day period, up to a maximum
of 0.50% per annum over the original interest rate on the Securities (“Shelf Registration
Additional Interest” and together with Additional Interest, “Registration Default Damages”). At
the time that the Shelf Registration has again been declared effective or the Prospectus again
becomes useable or upon the time when the Holder is permitted to sell its Registrable Securities
pursuant to a Shelf Registration Statement and Prospectus in accordance with applicable law, then
the interest rate on the Securities shall revert to the original interest rate on the Closing Date
and the Operating Partnership and the Guarantor shall no longer be required to pay Shelf
Registration Additional Interest.



     Any amounts of Registration Default Damages due pursuant to this Section 2(d) 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 such interest. If any
Security ceases to be outstanding during any period for which Registration Default Damages are
accruing, the Operating Partnership will prorate the Registration Default Damages payable with
respect to such Note.



     Notwithstanding anything herein to the contrary, the Registration Default Damages rate on the
Securities 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
Operating Partnership’s



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obligation to pay Registration Default Damages in accordance with this Section 2(d), neither
the Operating Partnership nor the Guarantor will have any liability for damages with respect to a
Registration Default.




     The sole remedy for any violation of any obligations the Operating Partnership may be deemed
to have pursuant to Section 314(a)(1) of the Trust Indenture Act or for the Operating Partnership’s
or the Guarantor’s compliance with Section 4.06 of the Indenture shall be the accrual of
Registration Default Damages on the Securities at a rate of 0.25% per annum based on the number of
days of the relevant interest period on which the Guarantor or the Operating Partnership is deemed
to be in violation of such section. In no event shall Registration Default Damages accrue on the
Securities at a per annum rate in excess of 0.50% per annum pursuant to both the Indenture and this
Agreement, taken together, regardless of the number of events or circumstances giving rise to the
requirement to pay such Registration Default Damages.



     (e) The Operating Partnership and the Guarantor acknowledge that any failure by the Operating
Partnership or the Guarantor to comply with their obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Operating Partnership’s and
the Guarantor’ obligations under Section 2(a) and Section 2(b) hereof.



     3. Registration Procedures. (a) In connection with their obligations pursuant to
Section 2(a) and Section 2(b) hereof, the Operating Partnership and the Guarantor shall:



     (i) prepare and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the Operating Partnership and the Guarantor,
(y) shall, in the case of a Shelf Registration, be available for the sale of the Registrable
Securities by the Holders thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements required by the SEC to be
filed therewith; and use their commercially reasonable efforts to cause such Registration Statement
to become effective and remain effective for the applicable period in accordance with Section 2
hereof;



     (ii) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented
by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and to comply fully with the applicable provisions of Rule 424 and 430A
under the Securities Act in a timely manner; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Securities or Exchange



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Securities. To the extent any Free Writing Prospectus is used, file with the SEC any Free Writing
Prospectus that is required to be filed by the Operating Partnership or the Guarantor with the SEC
in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be
filed;




     (iii) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities
covered by the Shelf Registration Statement, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary Prospectus, and each
Free Writing Prospectus and any amendment or supplement thereto, as such Holder, counsel or
Underwriter may reasonably request in order to facilitate the sale or other disposition of the
Registrable Securities thereunder; and the Operating Partnership and the Guarantor consent to the
use of such Prospectus and Free Writing Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of Registrable Securities and any
such Underwriters in connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or Free Writing Prospectus or any amendment or
supplement thereto in accordance with applicable law;



     (iv) use their commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall reasonably request in
writing by the time the applicable Registration Statement becomes effective; cooperate with such
Holders in connection with any filings required to be made with FINRA; and do any and all other
acts and things that may be reasonably necessary or advisable to enable each Holder to complete the
disposition in each such jurisdiction of the Registrable Securities owned by such Holder;
provided that neither the Operating Partnership nor the Guarantor shall be required to
(1) qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent
to service of process in any such jurisdiction or take any other action that would subject either
of them to service of process in suits or (3) subject itself to taxation in any such jurisdiction
if it is not so subject;



     (v) in the case of a Shelf Registration, notify each Holder of Registrable Securities covered
by the Shelf Registration Statement, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm such advice in writing
(1) when a Registration Statement has become effective and when any post-effective amendment
thereto has been filed and becomes effective (other than the filing of documents to be incorporated
by reference in a Registration Statement) or when any Free Writing Prospectus has been filed or any
amendment or supplement to the Prospectus or Free Writing Prospectus has been filed, (2) of any
request by the SEC or any state securities authority for amendments and supplements to a
Registration Statement, Prospectus or Free Writing Prospectus or for additional information after
the Registration Statement has become effective, (3) of the



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issuance by the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings for that purpose,
(4) if, between the effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of the Operating
Partnership or the Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable Securities cease to be
true and correct in all material respects or if the Operating Partnership or the Guarantor receives
any notification with respect to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the
happening of any event during the period a Shelf Registration Statement is effective that makes any
statement made in such Registration Statement or the related Prospectus or any Free Writing
Prospectus untrue in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or Free Writing Prospectus in order to make the statements
therein not misleading and (6) of any determination by the Operating Partnership or the Guarantor
that a post-effective amendment to a Registration Statement would be appropriate, other than
documents to be incorporated by reference in such Registration Statement;




     (vi) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest practicable moment and
provide prompt notice to each Holder of the withdrawal of any such order;



     (vii) in the case of a Shelf Registration, if requested, furnish to each selling Holder of
Registrable Securities, without charge, at least one conformed copy of each Shelf Registration
Statement and any post-effective amendment thereto (without any documents incorporated therein by
reference or exhibits thereto, unless requested);



     (viii) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and enable such
Registrable Securities to be issued in such denominations and registered in such names (consistent
with the provisions of the Indenture) as such Holders may reasonably request at least one Business
Day prior to the closing of any sale of Registrable Securities;



     (ix) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(v)(5) hereof, use their commercially reasonable efforts to prepare and file with the
SEC a supplement or post-effective amendment to such Shelf Registration Statement or the related
Prospectus, any Free Writing Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered (or, to the extent permitted by law,
made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing
Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Operating Partnership and the Guarantor



12









 




shall notify the Holders of Registrable Securities to suspend use of the Prospectus or Free
Writing Prospectus, as the case may be, as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree to suspend use of the Prospectus or Free Writing Prospectus,
as the case may be, until the Operating Partnership and the Guarantor have amended or supplemented
the Prospectus or Free Writing Prospectus, as the case may be, to correct such misstatement or
omission;




     (x) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or Free Writing Prospectus, provide copies of such document to the Initial Purchasers
and their counsel (and, in the case of a Shelf Registration Statement, to the selling Holders of
Registrable Securities and their counsel) and make such of the representatives of the Operating
Partnership and the Guarantor as shall be reasonably requested by the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the selling Holders of Registrable
Securities or their counsel) available for discussion of such document; and the Operating
Partnership and the Guarantor shall not, at any time after initial filing of a Registration
Statement, file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a
Registration Statement or a Prospectus, or a Free Writing Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the selling
Holders of Registrable Securities and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the selling Holders of Registrable Securities or their counsel) shall
reasonably object;



     (xi) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the effective date of a Registration Statement;



     (xii) cause the Indenture to be qualified under the Trust Indenture Act in connection with the
registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute,
and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may
be required to effect such changes and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;



     (xiii) in the case of a Shelf Registration, make available for inspection at the Guarantor’s
principal place of business by a representative of the selling Holders of the Registrable
Securities (an “Inspector”), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, any attorneys and accountants designated by a majority of the Holders
of Registrable Securities to be included in such Shelf Registration and any attorneys and
accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Operating Partnership and
the Guarantor, and cause the



13









 




respective officers, directors and employees of the Operating Partnership and the Guarantor to
supply all information reasonably requested by any such Inspector, Underwriter, attorney or
accountant in connection with a Shelf Registration Statement as is customary for similar due
diligence examinations; provided that if any such information is identified by the
Operating Partnership or the Guarantor as being confidential or proprietary, each Person receiving
such information shall take such actions as are reasonably necessary to protect the confidentiality
of such information to the extent such action is otherwise not inconsistent with, an impairment of
or in derogation of the rights and interests of any Inspector, Holder or Underwriter);




     (xiv) if reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Operating Partnership has received notification of the matters to be so
included in such filing; and



     (xvi) in the case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those requested by the Holders of a majority
in principal amount of the Registrable Securities being sold) in order to expedite or facilitate
the disposition of such Registrable Securities including, but not limited to, an Underwritten
Offering and in such connection, (1) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable Securities with respect to the
business of the Operating Partnership and its subsidiaries and the Registration Statement,
Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as are customarily
made by the Operating Partnership and the Guarantor to underwriters in underwritten offerings and
confirm the same if and when requested, (2) obtain opinions of counsel to the Operating Partnership
and the Guarantor (which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters customarily covered
in opinions requested in underwritten offerings, (3) obtain “comfort” letters from the independent
registered public accountants of the Operating Partnership and the Guarantor (and, if necessary,
any other certified public accountant of any subsidiary of the Operating Partnership or the
Guarantor, or of any business acquired by the Operating Partnership or the Guarantor for which
financial statements and financial data are or are required to be included in the Registration
Statement) addressed to each selling Holder and Underwriter of Registrable Securities, such letters
to be in customary form and covering matters of the type customarily covered in “comfort” letters
in connection with underwritten offerings and (4) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount of the Registrable Securities
being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties of the Operating Partnership



14









 




and the Guarantor made pursuant to clause (1) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.




     (b) In the case of a Shelf Registration Statement, the Operating Partnership may require each
Holder of Registrable Securities to furnish to the Operating Partnership such information regarding
such Holder and the proposed disposition by such Holder of such Registrable Securities as the
Operating Partnership and the Guarantor may from time to time reasonably request in writing.



     (c) In the case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any notice from the
Operating Partnership and the Guarantor of the happening of any event of the kind described in
Section 3(a)(v)(3) or 3(a)(v)(5) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such Holder’s receipt of
the copies of the supplemented or amended Prospectus contemplated by Section 3(a)(ix) hereof and,
if so directed by the Operating Partnership and the Guarantor, such Holder will deliver to the
Operating Partnership and the Guarantor all copies in its possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities
that is current at the time of receipt of such notice.



     (d) If the Operating Partnership and the Guarantor shall give any notice pursuant to Section
3(c) hereof to suspend the disposition of Registrable Securities pursuant to a Shelf Registration
Statement, the Operating Partnership and the Guarantor shall extend the period during which such
Shelf Registration Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such notice to and including
the date when the Holders of such Registrable Securities shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The Operating Partnership
and the Guarantor may give any such notice only twice during any 365-day period and any such
suspensions shall not exceed 60 days (whether or not consecutive) in the aggregate during any
365-day period, provided that, if the event triggering the suspension relates to a proposed
or pending material business transaction, the disclosure of which the board of directors of the
Guarantor determines in good faith would be reasonably likely to impede the ability to consummate
the transaction or would otherwise be seriously detrimental to the Operating Partnership or the
Guarantor and its subsidiaries taken as a whole, the Operating Partnership and the Guarantor may
extend the suspension from 60 days in any 365-day period to 90 days in any 365-day period.



     (e) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire
to do so may sell such Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment bank or investment banks and manager or managers (each an
“Underwriter”) that will administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering, subject to the approval
of the Operating Partnership, which approval shall not be unreasonably withheld.



15









 





     4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the
position that any broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to be an
“underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such Exchange Securities.



     The Operating Partnership and the Guarantor understand that it is the Staff’s position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers
or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation under the Securities
Act in connection with resales of Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.



     (b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Operating Partnership and the Guarantor agree to amend or supplement the Prospectus contained in
the Exchange Offer Registration Statement for a period of up to 180 days after the last Exchange
Date (as such period may be extended pursuant to Section 3(d) of this Agreement), if requested by
the Initial Purchasers or by one or more Participating Broker-Dealers, in order to expedite or
facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent
with the positions of the Staff recited in Section 4(a) above. The Operating Partnership and the
Guarantor further agree that Participating Broker-Dealers shall be authorized to deliver such
Prospectus (or, to the extent permitted by law, make available) during such period in connection
with the resales contemplated by this Section 4.



     (c) The Initial Purchasers shall have no liability to the Operating Partnership, the Guarantor
or any Holder with respect to any request that they may make pursuant to Section 4(b) above.



     5. Indemnification and Contribution. (a) The Operating Partnership and each
Guarantor, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser and
each Holder, their respective affiliates, directors and officers and each Person, if any, who
controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are
incurred), that arise out of, or are based upon, any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements



16









 




therein not misleading, or any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, any Free Writing Prospectus or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged
omission to state therein a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser or information relating to any Holder furnished to
the Operating Partnership in writing through the Representatives or any selling Holder expressly
for use therein. In connection with any Underwritten Offering permitted by Section 3, the
Operating Partnership and the Guarantor, jointly and severally, will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested in connection with
any Registration Statement.




     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the
Operating Partnership, the Guarantor, the Initial Purchasers and the other selling Holders, the
directors of the Operating Partnership and the Guarantor, each officer of the Operating Partnership
and the Guarantor who signed the Registration Statement and each Person, if any, who controls the
Operating Partnership, the Guarantor, any Initial Purchaser and any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with any information
relating to such Holder furnished to the Operating Partnership in writing by such Holder expressly
for use in any Registration Statement, any Prospectus and any Free Writing Prospectus. This
indemnity provision shall be in addition to any liability that any such Holder may otherwise have
to the Operating Partnership or the Guarantor.



     (c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 5 except to the extent that it
has been prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than under this
Section 5. If any such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and
any others



17









 




entitled to indemnification pursuant to this Section 5 that the Indemnifying Person may designate
in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person upon the advice of counsel shall have reasonably concluded that there may be
legal defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Initial Purchaser, its affiliates, directors and officers and any control
Persons of such Initial Purchaser shall be designated in writing by the Representatives, (y) for
any Holder, its directors and officers and any control Persons of such Holder shall be designated
in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the
Operating Partnership. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 60
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (B) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.




     (d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such



18









 




paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the Operating Partnership and the Guarantor from the offering of the Securities and the Exchange
Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities
registered under the Securities Act, on the other hand, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault of the Operating
Partnership and the Guarantor on the one hand and the Holders on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative fault of the Operating Partnership and
the Guarantor on the one hand and the Holders on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Operating Partnership and the Guarantor or by the Holders and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.




     (e) The Operating Partnership, the Guarantor and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable considerations referred to
in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 5, in no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to indemnification or 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 Securities 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 Operating Partnership or the Guarantor within the meaning of either the Securities Act
or the Exchange Act, each officer of the Operating Partnership or the Guarantor who shall have
signed the Registration Statement and each director of the Operating Partnership or the Guarantor
shall have the same rights to contribution as the Operating Partnership and the Guarantor, subject
in each case to the applicable terms and conditions of this paragraph (e).



19









 





     (f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.



     (g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Operating Partnership or
the Guarantor or the officers or directors of or any Person controlling the Operating Partnership
or the Guarantor, (iii) acceptance of any of the Exchange Securities and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration Statement.



     6. General.



     (a) No Inconsistent Agreements. The Operating Partnership and the Guarantor represent,
warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of any other outstanding
securities issued or guaranteed by the Operating Partnership or the Guarantor under any other
agreement and (ii) neither the Operating Partnership nor the Guarantor has entered into, or on or
after the date of this Agreement will enter into, any agreement that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof.



     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Operating Partnership and the Guarantor have
obtained the written consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or
consent; provided that no amendment, modification, supplement, waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any amendments,
modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing
executed by each of the parties hereto.



     (c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Operating Partnership by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement; (ii) if to the Operating Partnership and the Guarantor,
initially at the Operating Partnership’s address set forth in the Purchase Agreement and thereafter
at such other address, notice of which is given in accordance with the provisions of this Section
6(c); and (iii) to such



20









 




other persons at their respective addresses as provided in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with the provisions of
this Section 6(c). All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next
Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all
such notices, demands or other communications shall be concurrently delivered by the Person giving
the same to the Trustee, at the address specified in the Indenture.




     (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their
capacity as Initial Purchasers) shall have no liability or obligation to the Operating Partnership
or the Guarantor with respect to any failure by a Holder to comply with, or any breach by any
Holder of, any of the obligations of such Holder under this Agreement.



     (e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Operating Partnership and the Guarantor, on the one hand, and
the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights or
the rights of other Holders hereunder.



     (f) Rule 144A. The Operating Partnership hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A under the Securities Act.



     (g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Facsimile
signatures shall constitute original signatures for all purposes of this Agreement.



21









 





     (h) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.



     (i) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.



     (j) Miscellaneous. This Agreement contains the entire agreement between the parties relating
to the subject matter hereof and supersedes all oral statements and prior writings with respect
thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the
remainder of the terms, provisions, covenants and restrictions contained herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated. The Operating
Partnership, the Guarantor and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable provisions.



22









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	BIOMED REALTY, L.P.

 	 
	 	By:  	/s/
R. Kent Griffin	 
	 	 	Name:  	R. Kent Griffin 	 
	 	 	Title:  	 President, Chief Operating Officer 
 and Chief
Financial Officer
	 	 	 	
	 
	 	GUARANTOR:





BIOMED REALTY TRUST, INC.	 

	 
	 	By:  	/s/
R. Kent Griffin 	 
	 	 	Name:  	R. Kent Griffin 	 
	 	 	Title:  	 President, Chief Operating Officer 
 and Chief
Financial Officer









 









 







The foregoing Agreement is hereby confirmed and accepted as of the date first above written.




	 	 	 	 	 
	Wells Fargo Securities, LLC

 	 
	By:  	/s/
Carolyn C. Hurley 	 
	 	Name:  	Carolyn C. Hurley 	 
	 	Title:  	Director 	 
	 
	 
	Credit Suisse Securities (USA) LLC

 	 
	By:  	/s/
Arik Prawer 	 
	 	Name:  	
Arik Prawer 	 
	 	Title:  	Managing
Director 	 
	 
	 
	Deutsche Bank Securities Inc.

 	 
	By:  	/s/
Jared D. Birnbaum 	 
	 	Name:  	Jared D. Birnbaum 	 
	 	Title:  	Director 	 
	 
	 
	 	 	 
	By:  	/s/
Ben-zon Smilchensky 	 
	 	Name:  	Ben-zon Smilchensky 	 
	 	Title:  	Managing
Director 	 
	 



For themselves and the other several Initial Purchasers.