EXHIBIT 1.0
SENIOR HOUSING PROPERTIES TRUST
3,200,000 Shares of Beneficial Interest
UNDERWRITING AGREEMENT
June 27, 2001
UNDERWRITING AGREEMENT
June 27, 2001
UBS Warburg LLC
First Union Securities, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated
c/o UBS Warburg LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Senior Housing Properties Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 3,200,000 common shares (the "Firm Shares") of
beneficial interest, $.01 par value (the "Common Shares"), of the Company. In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional 480,000 Common Shares (the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively sometimes referred
to as the "Shares." The Shares are described in the Prospectus which is referred
to below.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement (file
number 333-60392) on Form S-3 under the Act (the "registration statement"),
including, among other things, a prospectus relating to, among other things,
common shares of beneficial interest, preferred shares of beneficial interest,
depository shares, guarantees, debt securities and warrants for such securities
of the Company, and such amendments to such registration statement as may have
been required prior to the date hereof have been similarly prepared and have
been filed with the Commission. Such registration statement, as so amended, and
any post-effective amendments thereto, have been declared by the Commission to
be effective under the Act. Such registration statement, as amended at the date
of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under
the Act and complies in all other material respects with said Rule. The Company
will next file with the Commission pursuant to Rule 424(b) under the Act a final
prospectus supplement to the basic prospectus included in such registration
statement, as so amended, describing the Shares and the offering thereof, in
such form as has been provided to or discussed with, and approved, by the
Underwriters.
The term "Registration Statement" as used in this Agreement means the
registration statement, as amended at the time it became effective, as
supplemented or amended prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents incorporated
by reference or deemed to be incorporated by reference therein. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed and must be declared
effective before the offering of the Shares may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. If an abbreviated registration statement is
prepared and filed with the Commission in accordance with Rule 462(b) under the
Act (an "Abbreviated Registration Statement"), the term "Registration Statement"
includes the Abbreviated Registration Statement. The term "Basic Prospectus" as
used in this Agreement means the base prospectus included in the Registration
Statement. The term "Prepricing Prospectus" as used in this Agreement means the
preliminary form of the Prospectus Supplement (as defined herein) subject to
completion, included in the Registration Statement. The term "Prospectus
Supplement" as used in this Agreement means any prospectus supplement
specifically relating to the Shares, in the form filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Act. The term
"Prospectus" as used in this Agreement means the Basic Prospectus together with
the Prospectus Supplement except that if such Basic Prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement was
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the Basic
Prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement. Any reference in this Agreement to the registration statement, the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, any
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the registration statement, the Registration
Statement, the Basic Prospectus, such Prepricing Prospectus, such Prospectus
Supplement or the Prospectus, as the case may be, and any reference to any
amendment or supplement to the registration statement, the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus
Supplement or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which, upon filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form S-3. As used herein,
the term "Incorporated Documents" means the documents which are incorporated by
reference in the registration statement, the Registration Statement, the Basic
Prospectus, any Prepricing Prospectus, any Prospectus Supplement, the
Prospectus, or any amendment or supplement thereto.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. On the basis of the representations and
warranties herein and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $12.33 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A annexed
hereto (or such number of Firm Shares increased as set forth in Section 8
hereof).
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The Company is advised by you that the Underwriters intend (i) to make
a public offering of their respective portions of the Firm Shares as soon after
the date hereof as in your judgment is advisable and (ii) initially to offer the
Firm Shares upon the terms set forth in the Prospectus. You may from time to
time increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations, warranties and
agreements of the Company and subject to all the terms and conditions herein set
forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Company, ratably in accordance with the number of Firm Shares
to be purchased by each of them (subject to such adjustment as you shall
determine to avoid fractional shares), all or a portion of the Additional Shares
as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Company for the Firm Shares. This option may be
exercised by you on behalf of the several Underwriters at any time (but not more
than once) on or before the thirtieth day following June 28, 2001, by written
notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the "additional time of purchase"); provided, however,
that the additional time of purchase shall not be earlier than the time of
purchase (as defined below) nor earlier than the second business day1 after the
date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised. The
number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on July 3, 2001 (unless another time shall be agreed to by you or
unless postponed in accordance with the provisions of Section 8 hereof). The
time at which such payment and delivery are actually made is hereinafter
sometimes called the "time of purchase." Certificates for the Firm Shares shall
be delivered to you in definitive form in such names and in such denominations
as you shall specify no later than the second business day preceding the time of
purchase. For the purpose of expediting the checking of the certificates for the
Firm Shares by you, the Company agrees to make such certificates available to
you for such purpose at least one full business day preceding the time of
purchase.
___________
1 As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day preceding the
additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) No order preventing or suspending the use of the Basic
Prospectus, any Prepricing Prospectus, the Prospectus Supplement or the
Prospectus is in effect and no proceedings for such purpose are pending
or, to the knowledge of the Company, threatened by the Commission or
the securities authority of any state or other jurisdiction. The
Registration Statement has become effective under the Act; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission or the
securities authority of any state or other jurisdiction.
(b) (i) The Company is eligible to use Form S-3 and the
offering of the Shares complies with the requirements of Rule 415, (ii)
each part of the Registration Statement, when such part became
effective, and also any Abbreviated Registration Statement when it
shall become effective, complied in all material respects with
applicable requirements of the Act and the Exchange Act, (iii) each
part of the Registration Statement, when such part became effective,
did not contain and each such part, as may be amended or supplemented,
if applicable, will not contain any 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, (iv) the
Registration Statement, any Abbreviated Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement
and the Prospectus comply and, as may be amended or supplemented, if
applicable, will comply in all material respects with the Act and the
Exchange Act and (v) the Prospectus does not contain and, as may be
amended or supplemented, if applicable, 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, except that the representations
and warranties set forth in this paragraph (b) do not apply to
statements or omissions in the Registration Statement, the Basic
Prospectus, any Prepricing Prospectus, the Prospectus Supplement or the
Prospectus based upon information relating to any Underwriter furnished
to the Company by such Underwriter through you expressly for use
therein.
(c) The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of
the Exchange Act, and none of such documents, when they were filed with
the Commission, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated
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by reference in (a) the Registration Statement, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading, and (b) the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, as applicable, and will not contain an 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 in which they
were made, not misleading.
(d) As of the date of this Agreement, the Company has and will
have an authorized capitalization as set forth in the Prospectus; all
of the issued and outstanding Common Shares of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable, have been issued in compliance with all federal and
state securities laws and were not issued in violation of any
preemptive or similar right.
(e) The Company has been duly formed and is existing as a real
estate investment trust in good standing under the laws of the State of
Maryland, with trust power to own, lease and operate its properties and
conduct its business as described in the Registration Statement.
(f) The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify in
any such jurisdiction would not individually or in the aggregate have a
material adverse effect on the business, prospects, properties,
condition (financial or otherwise) or results of operation of the
Company and the Subsidiaries (as defined herein), taken as a whole (a
"Material Adverse Effect").
(g) The Company has no subsidiaries other than those
identified in Schedule B hereto (collectively, the "Subsidiaries").
Other than the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
of any other corporation or have any direct or indirect equity interest
or ownership of long-term debt in any firm, partnership, joint venture,
limited liability company, association or other entity except for the
Company's ownership of 1,000,000 common shares of HRPT Properties Trust
and 100 common shares of Marriott International, Inc. Each Subsidiary
has been duly incorporated or formed and is validly existing as a
corporation or other entity, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation or organization, with
the requisite corporate, trust, partnership or other power to acquire
and own, lease and operate its properties and to conduct its business,
as described in the Registration Statement and the Prospectus; and each
Subsidiary is duly qualified and in good standing to do business in
each jurisdiction in which the nature of its business or the ownership
or leasing of the property requires such qualification, except where
the failure to be so qualified would not have a Material Adverse
Effect.
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(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The shares of beneficial interest of the Company,
including the Shares, conform in all material respects to the
description thereof included or incorporated by reference in the
Registration Statement and the Prospectus. The certificates evidencing
the Shares are in due and proper form and conform in all material
respects to the requirements of the Maryland REIT Law.
(j) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and, except
as described in the Registration Statement, free of any preemptive or
similar rights.
(k) Neither the Company nor any of the Subsidiaries is in
breach or violation of, or in default under (and no event has occurred
which with notice, lapse of time, or both would result in any breach or
violation of, or constitute a default under), its Declaration of Trust,
charter or by-laws or other organizational documents or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
Subsidiary is subject or by which any of them or any of their
properties is bound or affected, the effect of which would,
individually or in the aggregate, have a Material Adverse Effect.
(l) Except as would not individually or in the aggregate, have
a Material Adverse Effect, the issuance by the Company of the Shares,
the compliance by the Company with all of the provisions of this
Agreement, the execution, delivery and performance by the Company of
this Agreement, and the consummation of the transactions contemplated
herein will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound or to which any of the
property or assets of the Company or any Subsidiary is subject. In
addition, such action will not result in any violation of the
provisions of the Declaration of Trust or the bylaws of the Company or
any of the Company's other organizational documents or applicable laws
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its or its
Subsidiaries' properties.
(m) No approval, authorization, consent or order of or filing
with any federal, state or local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares or the consummation by the
Company of the transaction as contemplated hereby other than
registration of the Shares under the Act and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters.
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(n) Except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
shares of beneficial interest or other equity interests; and (ii) no
person has preemptive rights, co-sale rights, rights of first refusal
or other rights to purchase any Common Shares. No person has the right,
contractual or otherwise, to cause the Company to register under the
Act any shares of beneficial interest or other equity interests as a
result of the filing or effectiveness of the Registration Statement or
the sale of Shares contemplated thereby, except for such rights as have
been complied with or waived.
(o) Ernst & Young LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries was filed with
the Commission as part of the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2000 and is incorporated by
reference in the Registration Statement and Prospectus, are independent
public accountants as required by the Act.
(p) KPMG LLP, whose report on the financial statements with
respect to 42 nursing home facilities was filed with the Commission as
part of the Company's Current Report on Form 8-K/A and is incorporated
by reference in the Registration Statement and Prospectus, are
independent public accountants as required by the Act.
(q) All legal or governmental proceedings, contracts, leases
or documents of a character required to be described in the
Registration Statement or the Prospectus or any Incorporated Document,
and all documents required to be filed as an exhibit to the
Registration Statement or any Incorporated Document, have been so
described or filed or will be filed prior to the time of purchase as
required.
(r) Except as otherwise set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of the Subsidiaries is a party or of which any of the Company's or
any of the Subsidiaries' properties or assets or, to the knowledge of
the Company, any of the properties of the Company and the Subsidiaries
that is the subject, the result of which would, individually or in the
aggregate, have a Material Adverse Effect, and, to the Company's
knowledge, no such proceedings are threatened or contemplated, except
as disclosed in the Prospectus, the result of which would, individually
or in the aggregate, have a Material Adverse Effect. To the Company's
knowledge, after due investigation, there are no legal or governmental
proceedings pending to which any lessee, sublessee or operator of any
property of the Company or any Subsidiary or portion thereof is a
party, the result of which would, individually or
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in the aggregate, have a Material Adverse Effect, and no such
proceedings are being threatened or contemplated, except as disclosed
in the Prospectus and the result of which would, individually or in the
aggregate, have a Material Adverse Effect. Neither the Company nor any
of the Subsidiaries has received from any governmental authority notice
of any violation of any local, state or federal law, rule or regulation
including without limitation any such law, rule or regulation
applicable to the health care industry ("Health Care Laws") or relating
to human health or safety or the environment or any hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), except as disclosed in the Prospectus, the result of which
would, individually or in the aggregate, have a Material Adverse
Effect, and to the Company's knowledge, there is no such violation, or
any occurrence or circumstance that would give rise to a claim under or
pursuant to any local, state or federal law, rule or regulation
(including without limitation any Health Care Laws or Environmental
Laws), which would, individually or in the aggregate, have a Material
Adverse Effect. To the Company's knowledge, there is no violation of
any local, state or federal law, rule or regulation (including without
limitation Health Care Laws and Environmental Laws) by any person from
whom the Company or any of the Subsidiaries acquired any of its
properties (a "seller"), or any lessee, sublessee or operator of ------
any of their respective properties or any part thereof, the result of
which would, individually or in the aggregate, have a Material Adverse
Effect, and to the Company's knowledge, there is no such violation, or
any occurrence or circumstance that would give rise to a claim under or
pursuant to any local, state or federal law, rule or regulation
(including without limitation any Health Care Laws or Environmental
Laws), which would, individually or in the aggregate, have a Material
Adverse Effect, except as disclosed in the Prospectus. Neither the
Company nor any of the Subsidiaries has received from any governmental
authority any written notice of any condemnation of or zoning change
affecting the properties or any part thereof of the Company or any of
the Subsidiaries that individually or in the aggregate would have a
Material Adverse Effect and the Company does not know of any such
condemnation or zoning change which is threatened and which if
consummated individually or in the aggregate would have a Material
Adverse Effect. Nothing has come to the Company's attention that any
seller, lessee, sublessee or operator of any property of the Company or
any of the Subsidiaries, or portion thereof has, received from any
governmental authority any written notice of any condemnation of or
zoning change affecting the Properties or any part thereof of the
Company or any of the Subsidiaries that individually or in the
aggregate would have a Material Adverse Effect.
(s) Each of the Company and the Subsidiaries have good and
marketable title in fee simple or ground leases to the properties
disclosed in the Prospectus as being owned by them (the "Properties"),
free and clear of all liens, encumbrances, claims, mortgages, deeds of
trust, restrictions, security interests and defects ("Property
Encumbrances"), except for: (x) the leasehold interests of lessees in
the Company's and the Subsidiaries' properties held under lease (the
"Leases") and (y) any other Property Encumbrances that would not,
individually or in the aggregate, have a Material Adverse Effect. All
Property Encumbrances on or affecting the properties of the Company or
any of the Subsidiaries which are required to be disclosed in the
Prospectus are disclosed therein. Each of the Leases pertaining to the
properties of the Company or any of the Subsidiaries has been duly
authorized by the Company or one of the Subsidiaries, as applicable,
and is a valid and binding agreement of the Company or one of the
Subsidiaries, as applicable, and, to the knowledge of the Offerors,
each other party thereto, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles. To the knowledge of the Offerors, no lessee of any portion
of any of the properties of the Company or any of the Subsidiaries is
in default under its respective lease and there is no event which, but
for the passage of time or the giving of notice or
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both, would constitute a default under any such lease, except such
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(t) The Company and each of the Subsidiaries and, to the
Company's knowledge, each of the operators, lessees or sublessees of
any property or portion thereof of the Company or any of the
Subsidiaries have such permits, licenses, approvals, certificates,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any Health Care Laws
or Environmental Laws, as are necessary in the case of each such party
to acquire and own, lease or operate its properties and to conduct its
business, all as described in the Prospectus, except where the failure
to obtain such permits would not individually or in the aggregate have
a Material Adverse Effect; except as described in the Prospectus, the
Company and each of the Subsidiaries and, to the Company's knowledge,
each of the lessees, sublessees or operators of any property or portion
thereof of the Company or any of the Subsidiaries have fulfilled and
performed all of their obligations with respect to such permits and,
except as disclosed in the Prospectus, no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or result in any other impairment of the rights of
the holder of any such permit, except where the failure to fulfill or
perform, or the resulting termination or impairment, would not,
individually or in the aggregate, have a Material Adverse Effect; and,
except as described in the Prospectus, such permits contain no
restrictions that are burdensome to the Company and the Subsidiaries,
taken as a whole and that would, individually or in the aggregate, have
a Material Adverse Effect.
(u) The financial statements, together with the related
schedules and notes, forming a part of the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and
the Subsidiaries for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved.
The pro forma financial statements and other pro forma financial data
included in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of Regulation S-X of the Act, and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements. The other financial and statistical
data set forth in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with such
financial statements and books and records of the Company. There are no
financial statements (historical or pro forma) that are required to be
included in the Registration Statement and the Prospectus that are not
included as required.
(v) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any prospective material
adverse change, in the business, properties, condition (financial or
otherwise), or results of operations of the Company and the
Subsidiaries taken as a whole, (ii) any transaction which is material
to the Company or the Subsidiaries, (iii) any obligation, direct or
contingent, which is material to the Company
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and the Subsidiaries taken as a whole, incurred by the Company or the
Subsidiaries, (iv) any material change in the shares of beneficial
interest or material increase in the outstanding indebtedness of the
Company or the Subsidiaries, or (v) any dividend or distribution of any
kind declared, paid or made on the shares of beneficial interest of the
Company other than (A) regular quarterly dividends, declared, paid or
made or a dividend distribution of any kind on any class of its shares
of beneficial interest (other than dividends or distributions from
wholly-owned subsidiaries of the Company) and (B) the issuance of
common shares of beneficial interest to the trustees and officers
pursuant to the Company's Incentive Share Award Plan. Neither the
Company nor the Subsidiaries has any material contingent obligation
which is not disclosed in the Registration Statement.
(w) Each of the Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amount as are customary in the business in which they
are engaged, except as described in the Prospectus. Except as would
not, individually or in the aggregate, have a Material Adverse Effect,
all policies of insurance insuring the Company and the Subsidiaries or
any of their businesses, assets, employees, officers, directors and
trustees are in full force and effect, and the Company and the
Subsidiaries are in compliance with the terms of such policies in all
material respects. Except as would not, individually or in the
aggregate, have a Material Adverse Effect, there are no claims by the
Company or any of the Subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending
under a reservation of rights clause.
(x) Neither the Company nor any of the Subsidiaries has either
sent or received any communication regarding termination of, or intent
not to renew, any of the contracts or agreements referred to or
described in, or filed as an exhibit to, the Registration Statement,
and no such termination or non-renewal has been threatened by the
Company or any of the Subsidiaries or any other party to any such
contract or agreement.
(y) Neither the Company nor any of the Subsidiaries or any of
their respective affiliates has taken, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(z) The Company and the Subsidiaries have not sustained since
the date of the latest audited financial statements included in the
Prospectus any loss or interference with their businesses from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as disclosed in the Prospectus or other
than any loss or interference, which would individually or in the
aggregate not have a Material Adverse Effect.
(aa) The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii)
11
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(bb) The Company and the Subsidiaries have filed all federal,
state, local and foreign tax returns and tax forms required to be
filed. Such returns and forms are complete and correct in all material
respects, and all taxes shown by such returns or otherwise assessed
that are due or payable have been paid, except such taxes as are being
contested in good faith and as to which adequate reserves have been
provided. All payroll withholdings required to be made by the Company
and the Subsidiaries with respect to employees have been made except
where the failure to fulfill or perform, would not, individually or in
the aggregate, have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Company and the Subsidiaries in
respect of any tax liability for any year not finally determined are
adequate to meet any assessments or reassessments for additional taxes.
There have been no tax deficiencies asserted and, to the Company's
knowledge, no tax deficiency might be reasonably asserted or threatened
against the Company and/or the Subsidiaries that would individually or
in the aggregate have a Material Adverse Effect.
(cc) The outstanding Common Shares are, and the Shares will
be, subject to official notice of issuance and evidence of satisfactory
distribution, listed on the New York Stock Exchange (the "NYSE").
(dd) The Company meets the requirements for qualification and
taxation as a real estate investment trust ("REIT") under the Internal
Revenue Code of 1986 (the "Code").
(ee) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
4. Certain Covenants.
(a) The Company hereby agrees:
(i) to furnish such information as may be required
and otherwise to cooperate in qualifying the Shares for
offering and sale under the securities or blue sky laws of
such states as you may designate and to maintain such
qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall
not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such
state (except service of process with respect to the offering
and sale of the Shares); and to promptly advise you of the
receipt by the Company of any
12
notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose;
(ii) to make available to the Underwriters in New
York City as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall
have made any amendments or supplements thereto) as the
Underwriters may reasonably request for the purposes
contemplated by the Act; in case any Underwriter is required
to deliver a prospectus beyond the nine-month period referred
to in Section 10(a)(3) of the Act in connection with the sale
of the Shares, the Company will prepare promptly upon request,
but at its expense, such amendment or amendments to the
Registration Statement and such prospectuses as may be
necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act;
(iii) to advise you promptly, confirming such advice
in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or Prospectus or for
additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement
and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or
Prospectus including by filing any documents that would be
incorporated therein by reference and to file no such
amendment or supplement to which you shall object in writing;
(iv) to file promptly all reports and any definitive
proxy or information statement required to be filed by the
Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in
connection with the offering or sale of the shares, and to
promptly notify you of such filing;
(v) if, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a
post-effective amendment thereto or any Abbreviated
Registration Statement to be declared effective before the
offering of the Shares may commence, the Company will endeavor
to cause the registration statement or such post-effective
amendment to become effective as soon as possible and will
advise you promptly and, if requested by you, will confirm
such advice in writing, when the registration statement or
such post-effective amendment has become effective;
(vi) to furnish to you and, upon request, to each of
the other Underwriters for a period of three years from the
date of this Agreement (i)
13
copies of any reports or other communications which the
Company shall send to its shareholders or shall from time to
time publish or publicly disseminate, (ii) copies of all
annual, quarterly and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar
form as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities
exchange on which any class of securities of the Company is
listed, and (iv) such other information as you may reasonably
request regarding the Company or the Subsidiaries, in each
case as soon as such communications, documents or information
becomes available; provided, however, that in no case shall
the Company be required to furnish materials pursuant to this
paragraph which are filed and publicly accessible via ▇▇▇▇▇;
(vii) to advise the Underwriters promptly of the
happening of any event known to the Company within the time
during which a Prospectus relating to the Shares is required
to be delivered under the Act which, in the judgment of the
Company, would require the making of any change in the
Prospectus then being used, or in the information incorporated
therein by reference, so that the Prospectus would not include
an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at
the Company's expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish you a copy
of such proposed amendment or supplement before filing any
such amendment or supplement with the Commission;
(viii) to make generally available to its security
holders, and to deliver to you, an earnings statement of the
Company (which will satisfy the provisions of Section 11(a) of
the Act) covering a period of twelve months beginning after
the effective date of the Registration Statement (as defined
in Rule 158(c) of the Act) as soon as is reasonably
practicable after the termination of such twelve-month period;
(ix) to furnish to its shareholders as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income,
shareholders' equity and of cash flow of the Company) for such
fiscal year, accompanied by a copy of the certificate or
report thereon of nationally recognized independent certified
public accountants;
(x) to furnish to you one conformed copy of the
Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all
exhibits thereto and documents incorporated by reference
therein) and sufficient conformed copies of the foregoing
(other than exhibits) for distribution of a copy to each of
the other Underwriters;
14
(xi) to furnish to you as early as practicable prior
to the time of purchase and the additional time of purchase,
as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim
consolidated financial statements, if any, of the Company and
the Subsidiaries which have been read by the Company's
independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(d) hereof;
(xii) to apply the net proceeds from the sale of the
Shares in the manner set forth under the caption "Use of
proceeds" in the Prospectus;
(xiii) to pay all expenses, fees and taxes in
connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the
Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and
shipment), (ii) the issuance, sale and delivery of the Shares
by the Company, (iii) the word processing and/or printing of
this Agreement, any Agreement Among Underwriters and any
dealer agreements and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and
to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state
laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel to the
Underwriters) and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the
Underwriters and to dealers and (v) the filing for review of
the public offering of the Shares by the NASDR (including the
legal fees and filing fees and other disbursements of counsel
to the Underwriters with respect thereto), (vi) any listing of
the Shares on any securities exchange and any registration
thereof under the Exchange Act, and (vii) the performance of
the Company's other obligations under this Agreement;
(xiv) to furnish to you, before filing with the
Commission subsequent to the effective date of the
Registration Statement and during the period referred to in
paragraph (a)(vii) above, a copy of any document proposed to
be filed pursuant to Section 13, 14 or 15(d) of the Exchange
Act;
(xv) not to sell, offer to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise
dispose of, directly or indirectly, any Common Shares or
securities convertible into or exchangeable or exercisable for
Common Shares or options, warrants or other rights to purchase
Common Shares or any other shares of the Company that are
substantially similar to Common Shares or file a registration
statement under the Act relating to the offer and sale of any
shares of Common Shares or securities convertible into or
exchangeable or exercisable for Common Shares or options,
warrants or other rights to purchase Common Shares or any
other shares of the Company that are substantially similar to
Common Shares for a period of ninety (90)
15
days after the date hereof (the "Lock-up Period"), without the
prior written consent of UBS Warburg LLC, except for (i)
issuances of Common Shares upon the exercise of outstanding
options or warrants as disclosed in the Registration Statement
and the Prospectus to persons who have entered into Lock-Up
Agreements with the Underwriters, (ii) the issuance of
employee stock options not exercisable during the Lock-up
Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, (iii) issuances of
Common Shares under the Company's Incentive Share Award Plan
described in the Registration Statement and the Prospectus and
(iv) issuances of Common Shares as partial or full payment for
properties directly or indirectly acquired or to be acquired
by the Company or its subsidiaries; provided that, the Company
shall have conditioned such issuances of Common Shares upon
agreement of the recipients to the restrictions of this
paragraph;
(xvi) to use its best efforts to cause the Shares to
be listed on the NYSE; and
(xvii) to use its best efforts to continue to qualify
as a REIT under Sections 856 through 860 of the Code.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to clause (ii), (iii) or (iv) of the second paragraph of Section 7 hereof or
pursuant to the last paragraph of Section 8 hereof or the default by one or more
of the Underwriters in its or their respective obligations hereunder, the
Company shall, in addition to paying the amounts described in Section 4 hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, stating that:
(i) the Company has been duly formed, is existing as
a real estate investment trust and is in good standing under
the laws of the State of
16
Maryland, with trust power to own, lease and operate its
properties and conduct its business in all material respects
as described in the Registration Statement and the Prospectus,
to execute and deliver this Agreement and to issue, sell and
deliver the Shares as herein contemplated;
(ii) the Company is duly qualified to transact
business and is in good standing in each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than those
jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(iii) each Subsidiary of the Company identified in
Schedule C attached hereto (each a "Material Subsidiary") is a
corporation or other legal entity duly formed, existing and in
good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation
or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect. Each Material Subsidiary has the corporate
trust, partnership or other power to own or hold under lease
the properties it purports to own or hold under lease and to
transact the business it transacts and proposes to transact.
All of the issued and outstanding shares of beneficial
ownership of, or other ownership interests in, of each
Material Subsidiary has been duly authorized and validly
issued, is fully paid and except as to Material Subsidiaries
that are partnerships, non-assessable and except for SPTMRT
Properties Trust, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien or encumbrance;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company, and is a legal, valid
and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement of the same
may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles and except as to those provisions
relating to indemnities for liabilities arising under the Act
as to which no opinion need be expressed;
(v) the Shares to be sold by the Company have been
duly authorized and, when issued and delivered to and paid for
by the Underwriters, will be validly issued, fully paid and
non-assessable and are not subject to preemptive or, to the
knowledge of such counsel, similar rights;
(vi) the Company has authorized and outstanding
shares of beneficial interest as set forth or incorporated by
reference in the Registration Statement and the Prospectus;
the outstanding shares of beneficial interest of
17
the Company have been duly and validly authorized and issued
and are fully paid, nonassessable and free of any preemptive
rights, resale rights, rights of first refusal and similar
under any contract, agreement or instrument to which the
Company is a party described in or filed as an exhibit to the
Registration Statement or otherwise known to such counsel;
(vii) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(viii) the Registration Statement has become
effective under the Act and, to such counsel's knowledge, no
stop order proceedings with respect thereto are pending or
threatened under the Act and any required filing of the
Prospectus, and any supplement thereto pursuant to Rule 424
under the Act has been made in the manner and within the time
period required by such Rule 424;
(ix) the execution, delivery and performance of this
Agreement by the Company and the transactions contemplated
hereby do not and will not conflict with, or result in any
breach of, or constitute a violation under (nor constitute any
event which with notice, lapse of time, or both, would result
in any breach of, or constitute a default under) (A) any
provisions of the Declaration of Trust, charter, by-laws or
other organizational documents of the Company or any of the
Material Subsidiaries, (B) any provision of any material
agreement or other instrument to which the Company or any of
the Material Subsidiaries is a party or by which their
respective properties may be bound or affected, that is
described in the Prospectus filed as an exhibit to the
Registration Statement or is otherwise known to such counsel
or (C) any federal, state, local or foreign law, regulation or
rule, or any decree, to which the Company or the Material
Subsidiaries may be subject;
(x) to such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be described in the Prospectus
which have not been so filed or described;
(xi) to such counsel's knowledge, except as described
in the Prospectus or as would not, individually or in the
aggregate, have a Material Adverse Effect, there are no
private or governmental actions, suits, claims, investigations
or proceedings pending, threatened or contemplated to which
the Company or any of the Subsidiaries or any of their
officers is subject or of which any of their properties is
subject, whether at law, in equity or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency;
18
(xii) to such counsel's knowledge, no person has the
right, pursuant to the terms of any contract, agreement or
other instrument described in or filed as an exhibit to the
Registration Statement, to cause the Company to register under
the Act any shares of beneficial interest or other equity
interests as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as
contemplated hereby, except for such rights as have been
complied with or waived; and to the knowledge of such counsel,
except as described in the Registration Statement and
Prospectus, no person is entitled to registration rights with
respect to shares of capital stock or other securities of the
Company;
(xiii) the Company is not, and after the offering and
sale of the Shares, will not be, an "investment company," or
an entity controlled by an "investment company," as such terms
are defined in the Investment Company Act; and
(xiv) to such counsel's knowledge the statements in
(i) the Registration Statement and the Prospectus under the
captions "Description of common shares", "Our tenants and
property operations", and "Federal income tax and ERISA
considerations" and in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2000 under the
captions "Business--Financing Policies" (with respect to the
first paragraph only), "Business--Regulation and
Reimbursement", "Business--Government Regulations and Rate
Setting" and "Federal Income Tax Considerations" in each case
insofar as such statements purport to summarize matters
arising under Maryland, Massachusetts or New York law or the
federal law of the United States, or provisions of documents
as to which the Company is a party specifically referred to
therein, are accurate in all material respects.
In addition, such counsel shall state that, in the opinion of such
counsel, and subject to the restrictions and limitations set forth in such
counsel's tax opinion filed as an exhibit to the Registration Statement, (a) the
Company has qualified to be taxed as a REIT under the Code for each of its
fiscal years and (b) the proposed method of operation described in the
Prospectus and as represented to such counsel by the Company will enable the
Company to continue to satisfy the requirements for such qualification for
subsequent fiscal years under the Code. Actual qualification as a REIT, however,
will depend upon the Company's continued ability to meet, and its meeting,
through actual annual operating results and distributions, the various
qualifying tests under the Code.
Also, such counsel shall state that it has participated in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement and Prospectus
were discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus (except as and
to the extent stated in subparagraphs (vii) and (xiv) above), on the basis of
the foregoing nothing has come to the attention of such counsel that causes them
to believe that the Registration Statement or any
19
amendment thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at all times up to and including
the time of purchase or additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial and statistical data and
exhibits included or incorporated by reference in the Registration Statement or
Prospectus).
In rendering their opinion as aforesaid, ▇▇▇▇▇▇▇▇ & Worcester LLP may
rely upon an opinion, dated as of the time of purchase or the additional time of
purchase, as the case may be, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP as to
matters governed by Maryland law, provided that such reliance is expressly
authorized by such opinion and a copy of such opinion is delivered to the
Underwriters and is, in form and substance, satisfactory to the Underwriters and
counsel for the Underwriters. In addition, in rendering such opinion, such
counsel may state that their opinion as to laws of the State of Delaware is
limited to the Delaware General Corporation Law and that their opinion with
respect to the qualification of the Company and is Subsidiaries to do business
in jurisdictions other than their respective jurisdiction of organization is
based solely upon certificates to such effect issued by an appropriate official
of the applicable jurisdictions.
(b) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, special Maryland counsel of
the Company, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
stating that:
(i) the Company has been duly formed, is existing as
a real estate investment trust and is in good standing under
the laws of the State of Maryland, with trust power to own,
lease and operate its properties and conduct its business in
all material respects as described in the Registration
Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the shares as herein
contemplated;
(ii) each Subsidiary of the Company identified in
Schedule D attached hereto (each a "Maryland Subsidiary") is a
corporation or other legal entity duly formed, existing and in
good standing under the laws of its jurisdiction of
organization. Each Maryland Subsidiary has the trust power to
own or hold under lease the properties it purports to own or
hold under lease and to transact the business it transacts and
proposes to transact. All of the issued and outstanding shares
of beneficial interest of each Maryland Subsidiary have been
duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or
through subsidiaries, and to such counsel's knowledge, except
for SPTMRT
20
Properties Trust, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(iii) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated
hereby and by the Registration Statement do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time, or both, would result in any breach of, or
constitute a default under) (A) any provisions of the
Declaration of Trust, charter or by-laws or other
organizational documents of the Company or any of the Maryland
Subsidiaries or (B) any local or state Maryland law or
administrative regulation applicable to the Company and the
Maryland Subsidiaries;
(iv) the Company has authorized and outstanding
shares of beneficial interest as set forth or incorporated by
reference in the Registration Statement and the Prospectus;
the outstanding shares of beneficial interest of the Company
have been duly and validly authorized and issued by all
necessary trust action and are fully paid, nonassessable and
free of any preemptive rights, resale rights, rights of first
refusal and similar rights under the Maryland REIT Law; the
Shares being sold by the Company, when issued, will be free of
any preemptive rights, resale rights, rights of first refusal
and similar rights under the Maryland REIT Law; and the
certificates for the Shares are in due and proper form and
conform in all material respects to the requirements of the
Maryland REIT Law;
(v) no approval, authorization, consent or order of
or filing with any Maryland governmental or regulatory
commission, board, body, authority or agency having
jurisdiction over the Company is required in connection with
the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares being delivered at the time of
purchase and at the additional time of purchase, as the case
may be, or and the consummation of the transactions
contemplated hereby and by the Prospectus (In rendering the
opinion expressed in this paragraph (v), such counsel need
express no opinion concerning the securities laws of the State
of Maryland.);
(vi) to such counsel's knowledge the statements in
(i) the Registration Statement and the Prospectus under the
captions "Description of common shares" and "Description of
certain provisions of Maryland law and of our declaration of
trust and bylaws" and in each case insofar as such statements
purport to summarize matters arising under Maryland law are
accurate in all material respects;
(vii) to such counsel's knowledge, neither the
Company nor any of the Maryland Subsidiaries is in violation
of its Declaration of Trust, charter or by-laws or other
organizational documents or in violation of any local or
21
state Maryland law or administrative regulation applicable to
the Company and the Maryland Subsidiaries; and
(viii) except as described in the Registration
Statement and the Prospectus, all of the outstanding shares of
capital stock of each of the Maryland Subsidiaries that is a
REIT have been duly authorized and validly issued, are fully
paid and non-assessable, are owned by the Company.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the time of
purchase and the additional time of purchase, as the case may be, with
respect to the issuance and sale of the Securities by the Company, the
Registration Statement, the Prospectus and such other related matters
as the Underwriters may require. In addition, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may
rely on the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP as to all
matters of Maryland law.
(d) You shall have received from Ernst & Young LLP, a letter
dated, respectively, the date of this Agreement and the time of
purchase and the additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms approved by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters.
(e) You shall have received from KPMG LLP, a letter dated,
respectively, the date of this Agreement and the time of purchase and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms approved by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters.
(f) No amendment or supplement to the Registration Statement
or Prospectus, including documents deemed to be incorporated by
reference therein, shall have been to which you have objected in
writing.
(g) Prior to the time of purchase and the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the
time of purchase and the additional time of purchase, as the case may
be, (i) no material and unfavorable change, financial or otherwise
(other than as referred to in the Registration Statement and
Prospectus), in the business, prospects, properties, condition of the
Company and the
22
Subsidiaries taken as a whole shall occur or become known and (ii) no
transaction which is material and unfavorable to the Company and the
Subsidiaries taken as a whole shall have been entered into by the
Company or any of the Subsidiaries.
(i) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, there shall not have occurred any downgrading, nor shall any notice
or announcement have been given or made of (i) any intended or
potential downgrading or (ii) any review or possible change that does
not indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company by any "nationally recognized statistical
rating organization," as that term is defined in Rule 436(g)(2) under
the Act.
(j) You shall have received the agreement (a "Lock-Up
Agreement") of each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and HRPT
Properties Trust not to sell, offer to sell, contract to sell,
hypothecate, grant any option to sell or otherwise dispose of, directly
or indirectly, any Common Shares or securities convertible into or
exchangeable for Common Shares or warrants or other rights to purchase
Common Shares for a period of 90 days after the date of the Prospectus
Supplement without the prior written consent of UBS Warburg LLC.
(k) The Company will, at the time of purchase and the
additional time of purchase, as the case may be, deliver to you a
certificate of two of its executive officers to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of such date, that the Company has
performed such of its obligations under this Agreement as are to be
performed at or before the time of purchase and the conditions set
forth in paragraphs (f), (g) and (h) of this Section 6 have been met.
(l) The Company will, at the time of purchase and the
additional time of purchase, as the case may be, deliver to you a
certificate signed by the President of the Company substantially in
such form approved by you and counsel to the Underwriters, respecting
the Company's compliance, both prior to and after giving effect to the
transactions contemplated hereby, with the financial covenants set
forth in the Company's credit agreement and certain other agreements
and instruments respecting outstanding indebtedness of the Company and
the Subsidiaries.
(m) The Shares shall have been approved for listing on the New
York Stock Exchange (the "NYSE").
The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase as you may
reasonably request.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
or an Abbreviated Registration Statement to be declared or become
23
effective before the offering of the Shares may commence, when notification of
the effectiveness of the registration statement or such post-effective amendment
has been released by the Commission or such Abbreviated Registration Statement
has, pursuant to the provisions of Rule 462 under the Act, become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Company, by notifying you, or by you, as Underwriters, by
notifying the Company.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares (i) if, since the time of execution of this Agreement or
the respective dates as of which information is given in the Registration
Statement and Prospectus, (y) there has been any material adverse and
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, prospects, properties,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiaries taken as a whole, which would, in your judgment or in the
judgment of such group of Underwriters, make it impracticable to market the
Shares, or (z) there shall have occurred any downgrading, or any notice shall
have been given of (a) any intended or potential downgrading or (b) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any of the Subsidiaries by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act or (ii) if, at any time prior to the time of
purchase and the additional time of purchase, as the case may be, trading in
securities on the New York Stock Exchange, the American Stock Exchange or Nasdaq
shall have been suspended or limitations or minimum prices shall have been
established on the NYSE, the American Stock Exchange or the Nasdaq or (iii) if,
at any time prior to the time of purchase and the additional time of purchase,
as the case may be, a banking moratorium shall have been declared either by the
United States or New York State authorities, or (iv) if, at any time prior to
the time of purchase and the additional time of purchase, as the case may be,
the United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter, telegram or telecopy.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4, 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
24
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the principal amount of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the total aggregate principal amount of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of Firm Shares they are obligated to purchase pursuant to
Section 1 hereof) the principal amount of Firm Shares agreed to be purchased by
all such defaulting Underwriters, as hereinafter provided. Such Firm Shares
shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such principal amount or amounts as you may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Firm Shares shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase and the additional time of purchase, as the
case may be, for a period not exceeding five business days in order that any
necessary changes in the Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate principal amount of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total
aggregate principal amount of Shares which all Underwriters agreed to purchase
hereunder, and if neither the non-defaulting Underwriters nor the Company shall
make arrangements within the five business day period stated above for the
purchase of all the Shares which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated without further
act or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors, officers, employees and agents and any
person who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus
Supplement or in the Prospectus (or in any of the foregoing as the same may at
any time be amended or supplemented), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
the Registration Statement, the Basic Prospectus, any Prepricing Prospectus, any
25
Prospectus Supplement or the Prospectus (or in any of the foregoing as the same
may at any time be amended or supplemented) or necessary to make the statements
made therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished by or on behalf of any Underwriter through you to the
Company expressly for use with reference to such Underwriter in the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus
Supplement or the Prospectus (or in any of the foregoing as the same may at any
time be amended or supplemented) or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such information
required to be stated in the Registration Statement, the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus (or in any of
the foregoing as the same may at any time be amended or supplemented) or
necessary to make such information not misleading or (ii) any untrue statement
or alleged untrue statement made by the Company in Section 3 of this Agreement
or the failure by the Company to perform when and as required any agreement or
covenant contained herein or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or, with
the approval of the Company, on behalf of the Company including, without
limitation, slides, videos, films, tape recordings, used in connection with the
marketing of the Shares; provided, however, that, solely with regard to clause
(i), the foregoing indemnity agreement with respect to any Basic Prospectus or
Prepricing Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting such losses, claims, damages or liabilities purchased
Securities, or any person controlling the Underwriter, if sufficient copies of
the Prospectus were timely delivered to such Underwriter pursuant to Section 4
hereof and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
given or sent to such person, if required by law to have been delivered, at or
prior to the written confirmation of the sale of the Securities to such person,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities.
If any action, suit or proceeding (together, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, such Underwriter
or such person shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses related thereto; provided, however,
that the omission to so notify the Company shall not relieve the Company from
any liability which the Company may have to any Underwriter or any such person
or otherwise. Such Underwriter or such person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or
26
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any such Proceeding effected without its prior written consent but
if settled with the prior written consent of the Company, the Company agrees to
indemnify and hold harmless any Underwriter and any such person from and against
any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its trustees, officers, employees and agents, and any
person who controls the Company within the meaning of Section 15 of the Act, or
Section 20 of the Exchange Act, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company or any such person may incur under the Act,
the Exchange Act, or common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished by or on behalf of such Underwriter through you to
the Company expressly for use with reference to such Underwriter in the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the
Prospectus Supplement or in the Prospectus (or in any of the foregoing as such
document may at any time be amended or supplemented) or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus
Supplement or the Prospectus (or in any of the foregoing as such document may at
any time be amended or supplemented) or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution
27
of such Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses, provided, however, that
the omission to so notify such Underwriter shall not relieve such Underwriter
from any liability which such Underwriter may have to the Company or any such
person or otherwise. The Company or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company or such person unless the employment of
such counsel shall have been authorized in writing by such Underwriter in
connection with the defense of such Proceeding or such Underwriter shall not
have employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to or in
conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the
28
other in connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the total underwriting discounts and commissions received by
the Underwriters, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any claim or
Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters 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 subsection (c) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
(e) The indemnity and contribution agreements contained in this Section
9 and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors,
officers, employees or agents or any person (including each partner, officer,
director, employee or agent of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its trustees, officers, employees or agents or any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company's officers, trustees, employees or agents in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, and if to the Company, shall be sufficient in all respects if delivered
or sent to the Company at the offices of the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief
Operating Officer, with a copy to ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Esq.
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against an Underwriter or any
indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company and to the extent
provided in Section 9 hereof the controlling persons, directors and officers
and, if applicable, trustees referred to in such Section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
14. Information Furnished by the Underwriters. The statements set forth
in the last sentence on the last paragraph on the cover page of the Prospectus
Supplement and the statements set forth in the first, third, fifth and seventh
paragraphs under the caption "Underwriting" in the Prospectus Supplement
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3 and 9 hereof.
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts that together shall constitute one and the same agreement
among the parties.
30
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS Warburg LLC, an indirect, wholly-owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending relationships
with issuers of securities underwritten or privately placed by UBS Warburg LLC.
To the extent required under the securities laws, prospectuses and other
disclosure documents for securities underwritten or privately placed by UBS
Warburg LLC will disclose the existence of any such lending relationships and
whether the proceeds of the issue will be used to repay debts owed to affiliates
of UBS Warburg LLC.
THE ARTICLES OF AMENDMENT AND RESTATEMENT ESTABLISHING SENIOR HOUSING
PROPERTIES TRUST, DATED SEPTEMBER 2, 1999, A COPY OF WHICH, TOGETHER WILL ALL
AMENDMENTS THERETO, IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "SENIOR HOUSING
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION OF TRUST, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF SENIOR HOUSING PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL
LIABILITY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SENIOR HOUSING PROPERTIES
TRUST. ALL PERSONS DEALING WITH SENIOR HOUSING PROPERTIES TRUST, SHALL LOOK ONLY
TO THE ASSETS OF SENIOR HOUSING PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR
THE PERFORMANCE OF ANY OBLIGATION.
31
If the foregoing correctly sets forth the understanding
between the Company and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement between the Company and the Underwriters
severally.
Very truly yours,
SENIOR HOUSING PROPERTIES TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Operating Officer
Accepted and agreed to as of the date first above written:
UBS WARBURG LLC
FIRST UNION SECURITIES, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INCORPORATED
By: UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
32
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS Warburg LLC...................................................... 960,000
First Union Securities, Inc. ........................................ 800,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated................................. 800,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated.......................................... 640,000
---------
Total............................... 3,200,000
=========
Schedule A-1
SCHEDULE B
Subsidiary Name
HRES1 Properties Trust
HRES2 Properties Trust
SHOPCO Holdings, Inc.
SHOPCO-AZ, LLC
SHOPCO-CA, LLC
SHOPCO-COLORADO, LLC
SHOPCO-CT, LLC
SHOPCO-GA, LLC
SHOPCO-IA, LLC
SHOPCO-KS, LLC
SHOPCO-LA, LLC
SHOPCO-MA, LLC
SHOPCO-MI, LLC
SHOPCO-MO, LLC
SHOPCO-NC, LLC
SHOPCO-NE, LLC
SHOPCO-PA, LLC
SHOPCO-SD, LLC
SHOPCO-WI, LLC
SHOPCO-WY, LLC
SNH-CALIFORNIA, INC.
SNH Capital Trust Holdings
SNH Capital Trust I
SNH Capital Trust II
SNH Capital Trust III
SNH-IOWA, INC.
SNH Holding Co., Inc.
SNH-MICHIGAN, INC.
SNH-NEBRASKA, INC.
SPTGEN Properties Trust
SPTIHS Properties Trust
SPTMISC Properties Trust
SPTMNR Properties Trust
SPTMRT Properties Trust
SPTSUN Properties Trust
SPTSUN II Properties Trust
Schedule B-1
SCHEDULE C
Material Subsidiaries
HRES1 Properties Trust
SPTMRT Properties Trust
Schedule C-1
SCHEDULE D
Maryland Subsidiaries
HRES1 Properties Trust
HRES2 Properties Trust
SNH Capital Trust Holdings
SNH Capital Trust I
SNH Capital Trust II
SNH Capital Trust III
SPTGEN Properties Trust
SPTIHS Properties Trust
SPTMISC Properties Trust
SPTMNR Properties Trust
SPTMRT Properties Trust
SPTSUN Properties Trust
SPTSUN II Properties Trust
Schedule D-1