Exhibit 1.1
SENIOR HOUSING PROPERTIES TRUST
$150,000,000 Aggregate Principal Amount
7 7/8% Senior Notes Due 2015
UNDERWRITING AGREEMENT
April 11, 2003
UNDERWRITING AGREEMENT
April 11, 2003
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 UBS Warburg LLC (the "UNDERWRITER") $150,000,000 in aggregate
principal amount of its 7 7/8% Senior Notes Due 2015 (the "NOTES"). The Notes
are to be issued pursuant to an indenture dated as of December 20, 2001, between
the Company and U.S. Bank National Association (successor of State Street Bank
and Trust Company), as trustee (the "Trustee"), as supplemented by a second
supplemental indenture thereto to be dated as of April 21, 2003 (the
"Indenture"). Copies of the Indenture, in substantially final form, have been
delivered to the Underwriter.
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 333-76588) on Form S-3 under the Act (the "REGISTRATION STATEMENT"),
including 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 Notes and the offering thereof, in such form as has
been provided to or discussed with, and approved, by the Underwriter.
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 Notes may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. If an
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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 dated January 30, 2002, as filed with the Commission
pursuant to Rule 424(b) included in the Registration Statement, it being
understood that the term Basic Prospectus shall not be deemed to include the
prospectus supplement, dated February 15, 2002, relating to the offering of
15,000,000 of the Company's shares of beneficial interest. The term "PROSPECTUS
SUPPLEMENT" as used in this Agreement means any final prospectus supplement
specifically relating to the Notes, 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 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 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 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
Prospectus Supplement, the Prospectus, or any amendment or supplement thereto.
The Company and the Underwriter 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 the 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, the Underwriter agrees
to purchase from the Company, at a purchase price of 97.621% of the principal
amount thereof (the "PURCHASE PRICE"), the Notes.
The Company is advised by the Underwriter that the Underwriter intends
to make a public offering of the Notes as soon after the date hereof as in the
judgment of the Underwriter is advisable.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Notes
shall be made to the Company by Federal Funds wire transfer, against delivery of
the Notes to the Underwriter through the facilities of the Depository Trust
Company ("DTC") for the account of the Underwriter. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on April 21, 2003 (unless
another time shall be agreed to by the underwriter). The time at which
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such payment and delivery are actually made is hereinafter sometimes called the
"TIME OF PURCHASE."
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Underwriter that:
(a) No order preventing or suspending the use of the Basic 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
Notes 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, the
Exchange Act and the Trust Indenture Act of 1939 (the "1939 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, 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, the Exchange Act and the 1939 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 (x) statements or omissions in the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus based upon information relating to the Underwriter furnished to
the Company by the Underwriter expressly for use therein or (y) the
Trustee's Statement of Eligibility and Qualification on Form T-1 (the "FORM
T-1") under the 1939 Act.
(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 by
reference in (i) 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 (ii) the
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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) The Indenture has been duly and validly authorized by the Company
and, upon its execution and delivery by the Company and assuming due
execution and delivery by the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally or general equitable
principles; and the Indenture has been duly qualified under the 1939 Act
and conforms in all material respects to the description thereof in the
Registration Statement and the Prospectus.
(e) The Notes have been duly and validly authorized by the Company and,
when executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered to the Underwriter against payment
therefor in accordance with the terms hereof, will have been validly issued
and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles, and the
Notes will conform in all material respects to the description thereof in
the Prospectus.
(f) 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.
(g) 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.
(h) The Company is duly qualified and is in good standing in the
Commonwealth of Massachusetts, such Commonwealth being the only
jurisdiction in which the ownership or leasing of the Company's properties
or the conduct of its business requires such qualification, other than
those jurisdictions where the failure to so qualify would not individually
or in the aggregate have a material adverse effect on the business,
prospects, properties, condition (financial or otherwise) or results of
operations of the Company and the Subsidiaries (as defined herein), taken
as a whole (a "MATERIAL ADVERSE EFFECT").
(i) The Company has no subsidiaries (as defined in the Act) other than
those identified in SCHEDULE A hereto (collectively, the "SUBSIDIARIES").
Other than the
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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, 35,000 shares of Five Star Quality
Care, Inc. and 100 common shares of Marriott International, Inc. The
Subsidiaries identified in SCHEDULE B hereto (each, a "MATERIAL
SUBSIDIARY") are the only Subsidiaries of the Company that are Significant
Subsidiaries (as such term is defined by Rule 1-02(w) of Regulation S-X).
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 individually or in the
aggregate have a Material Adverse Effect. Each of the Material Subsidiaries
is duly qualified and in good standing to do business in the jurisdictions
set forth below the name of such Material Subsidiary on SCHEDULE C hereto,
such jurisdictions being the only jurisdictions 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
individually or in the aggregate have a Material Adverse Effect.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(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), (i) its Declaration of Trust, charter or
by-laws or other organizational documents; (ii) 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 or (iii) 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, except, in the case of clauses (ii)
and (iii), for those breaches, violations or defaults which, individually
or in the aggregate, would not 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 Notes, 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
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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
Subsidiary or any of the Company's or any Subsidiary'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 Notes or the consummation by the Company of the
transaction as contemplated hereby other than registration of the Notes
under the Act, the qualification of the Indenture under the 1939 Act and
any necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Notes are being offered by the
Underwriter.
(n) No person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, the Notes. No
person has the right, contractual or otherwise, to cause the Company to
register under the Act any securities of the Company as a result of the
filing or effectiveness of the Registration Statement or the sale of Notes
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, 2002 and is incorporated by reference in the
Registration Statement and Prospectus, are independent public accountants
as required by the Act.
(p) 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.
(q) 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 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, 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 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
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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.
(r) Each of the Company and the Subsidiaries has good and marketable
title in fee simple or ground leases to the properties disclosed in the
Prospectus as being owned by them (the "PROPERTIES"); and the Properties
are free and clear of all liens, encumbrances, claims, mortgages, deeds of
trust, restrictions, security interests and defects ("PROPERTY
ENCUMBRANCES"), except for: (i) the leasehold interests of lessees in the
Company's and the Subsidiaries' properties held under lease (the "LEASES");
(ii) any other Property Encumbrances that would not, individually or in the
aggregate, have a Material Adverse Effect and (iii) those Property
Encumbrances set forth in the Registration Statement and Prospectus. 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 Company's knowledge, each other party
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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 Company's
knowledge, 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 both, would constitute a default under any such lease, except as
disclosed in the Registration Statement and Prospectus and except for such
defaults that would not, individually or in the aggregate, have a Material
Adverse Effect.
(s) 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.
(t) 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 or incorporated by
reference 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, the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements
and, to the extent applicable, all disclosures regarding Non-GAAP Financial
Measures (as such term is defined by the rules and regulations of the
Commission) comply, in all material respects, with Regulation G of the
Exchange Act and Item 10 of Regulation S-K. 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
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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.
(u) 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 and the
Subsidiaries taken as a whole, incurred by the Company or the Subsidiaries,
(iv) any material change in the outstanding shares of beneficial interest
or material increase in the outstanding indebtedness of the Company or the
Subsidiaries, (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. None of the Company nor the Subsidiaries has any material
contingent obligation which is not disclosed in the Registration Statement.
(v) 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.
(w) Except as disclosed in the Registration Statement, 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 or any Incorporated Document, 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.
(x) 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 Notes.
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(y) 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.
(z) the Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; the principal
executive officers (or their equivalents) and principal financial officers
(or their equivalents) of the Company have made all certifications required
by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and any
related rules and regulations promulgated by the Commission, and the
statements contained in any such certification are complete and correct;
the Company maintains "disclosure controls and procedures" (as defined in
Rule 13a-14(c) under the Exchange Act); the Company is otherwise in
compliance in all material respects with all applicable effective
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(aa) 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.
(bb) The Company meets the requirements for qualification and taxation
as a real estate investment trust ("REIT") under the Internal Revenue Code
of 1986, as amended (the "CODE").
(cc) The Company is not and, after giving effect to the offering and
sale of the Notes, 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").
10
4. CERTAIN COVENANTS. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Notes for offering and sale under the
securities or blue sky laws of such states as the Underwriter may designate
and to maintain such qualifications in effect so long as required for the
distribution of the Notes; 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 Notes); and to promptly advise the Underwriter
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriter in New York City as 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 Underwriter may reasonably request for the purposes contemplated by the
Act; in case the 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 Notes, 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;
(c) to advise the Underwriter 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 the Underwriter 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 the Underwriter shall object in writing;
(d) 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 Notes, and to
promptly notify the Underwriter of such filing;
(e) 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 Notes 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 the Underwriter promptly and,
if requested by the Underwriter, will confirm such advice in
11
writing, when the registration statement or such post-effective amendment
has become effective;
(f) to furnish to the Underwriter, for a period of three years from the
date of this Agreement, (i) 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 the Underwriter 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 ▇▇▇▇▇;
(g) to advise the Underwriter promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to
the Notes 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 Underwriter promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to furnish
the Underwriter a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(h) to make generally available to its security holders, and to deliver
to the Underwriter, 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;
(i) 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;
(j) to furnish to the Underwriter 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);
(k) to furnish to the Underwriter as early as practicable prior to the
time of purchase but not later than two business days prior thereto, a copy
of the latest available
12
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;
(l) to apply the net proceeds from the sale of the Notes in the manner
set forth under the caption "Use of proceeds" in the Prospectus;
(m) to pay all expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, the Basic Prospectus,
any Prospectus Supplement, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriter and to dealers (including costs of mailing and
shipment), (ii) the issuance, sale and delivery of the Notes by the
Company, (iii) the word processing and/or printing of this Agreement, any
Agreement among Underwriters, any dealer agreements and the Indenture and
the reproduction and/or printing and furnishing of copies of each thereof
to the Underwriter and to dealers (including costs of mailing and
shipment), (iv) the qualification of the Notes 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 Underwriter) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to
the Underwriter and to dealers and (v) the filing for review of the public
offering of the Notes by the NASD Regulation, Inc. (including the legal
fees and filing fees and other disbursements of counsel to the Underwriter
with respect thereto), (vi) any listing of the Notes on any securities
exchange and any registration thereof under the Exchange Act, (vii) the
fees and expenses of the Trustee and its counsel, (viii) the approval of
the Notes by DTC for "book entry" transfer, (ix) the rating of the Notes by
rating agencies and (x) the performance of the Company's other obligations
under this Agreement;
(n) to furnish to the Underwriter, before filing with the Commission
subsequent to the effective date of the Registration Statement and during
the period referred to in paragraph (g) above, a copy of any document
proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange
Act; and
(o) to not, without the prior written consent of the Underwriter,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Notes) or publicly announce an
intention to effect any such transaction, during the period from the date
hereof through and including May 11, 2003; provided that this will not
prevent the Company from making borrowings under the Credit Agreement,
dated as of June 27, 2002, by and among the
13
Company, Wachovia Bank National Association, as Agent and the other
financial institutions signatory thereto; and
(p) to use its best efforts to continue to qualify as a REIT under
Sections 856 through 860 of the Code.
5. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the Notes are not
delivered for any reason other than the termination of this Agreement pursuant
to clause (ii), (iii), (iv), (v), (vi) or (vii) of the second paragraph of
Section 7 hereof the Company shall, in addition to paying the amounts described
in Section 4 hereof, reimburse the Underwriter for all of its out-of-pocket
expenses, including the reasonable fees and disbursements of its counsel.
6. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter 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 the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to the Underwriter at the time of
purchase an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for the Company,
addressed to the Underwriter, and dated the time of purchase and in form
satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, 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 Notes as herein
contemplated;
(ii) the Company is duly qualified to transact business and is in
good standing in each of the jurisdictions set forth on SCHEDULE C
hereto;
(iii) each 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 of
the jurisdictions set forth on SCHEDULE C hereto. 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, each Material Subsidiary
has been duly authorized and validly issued, are fully paid and
non-assessable and are 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
14
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 Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery
by the Trustee, is a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforceability of
the same may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting creditors' rights
generally and by general equitable principles. The Indenture has been
duly qualified under the 1939 Act;
(vi) The Notes conform to the description thereof in the
Prospectus. The Indenture conforms to the description thereof on the
Prospectus;
(vii) the Notes are in a form contemplated by the Indenture, and
have been duly authorized by all necessary corporate action and when
the Notes have been duly authenticated by the Trustee as specified in
the Indenture and delivered against payment therefor in accordance with
the Agreement, the Notes will be valid and binding obligations of the
Company enforceable in accordance with its terms (except as enforcement
thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance and other similar laws relating to or affecting
creditors' rights generally and by general equitable principles), and
entitled to the benefits of the Indenture;
(viii) 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 and are fully paid, nonassessable and free of any
preemptive rights, resale rights, rights of first refusal and similar
rights 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;
(ix) 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;
(x) 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,
15
has been made in the manner and within the time period required by such
Rule 424;
(xi) the issue and sale of the Notes and the compliance by the
Company with the provisions of the Indenture and this Agreement by the
Company and the transactions contemplated hereby and thereby 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 or filed as an exhibit to
the Registration Statement or any Incorporated Document 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;
(xii) 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;
(xiii) 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;
(xiv) 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 or
any Incorporated Document, to cause the Company to register under the
Act any debt securities of the Company as a result of the filing or
effectiveness of the Registration Statement or the sale of the Notes 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 securities of the Company;
(xv) the Company is not, and after the offering and sale of the
Notes, will not be, an "investment company," or an entity controlled by
an
16
"investment company," as such terms are defined in the Investment
Company Act; and
(xvi) to such counsel's knowledge the statements in (i) the
Registration Statement and the Prospectus under the captions
"Description of notes", "Description of other indebtedness",
"Description of debt securities" and "Material federal income tax
consequences"; (ii) in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2002 under the captions
"Business--Financing Policies" (with respect to the first paragraph
only), "Business--Lease Terms," "Business--Government regulation and
reimbursement," "Business--Nursing homes," "Business--Federal Income
Tax Considerations," "Business--ERISA Plans, ▇▇▇▇▇ Plans and Individual
Retirement Accounts," "Legal Proceedings," "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Related
Party Transactions," "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Debt and Trust Preferred
Covenants" and in the fourth paragraph under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources" and (iii) in the Company's
Schedule 14A relating to its Annual Meeting of Shareholders to be held
on May 6, 2003 under the caption "Certain Relationships and Related
Party Transactions" and 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 and
reasonably acceptable to the Underwriter, (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.
Such counsel may state that 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
Underwriter 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 (vi), (ix) and (xvi) 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 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
17
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus or any supplement thereto at the date of the Prospectus
Supplement or such other supplement, and at all times up to and including the
time of purchase 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 or as to the Form T-1).
In rendering their opinion as aforesaid, ▇▇▇▇▇▇▇▇ & Worcester LLP may
rely upon an opinion, dated as of the time of purchase, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, 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 Underwriter and is, in form and substance, satisfactory to the
Underwriter and counsel for the Underwriter. 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 the Underwriter at the time of
purchase an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, special
Maryland counsel of the Company, addressed to the Underwriter, and dated
the time of purchase and in form satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriter, 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 Notes 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, are fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, and to such
counsel's knowledge, 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,
18
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;
(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 Notes being delivered at the
time of purchase 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 the Registration
Statement and the Prospectus under the caption "Description of certain
provisions of Maryland law and of our declaration of trust and bylaws,"
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 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) The Underwriter shall have received at the time of purchase an
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, dated the
time of purchase with respect to the issuance and sale of the Notes by the
Company, the Registration Statement, the Prospectus and such other related
matters as the Underwriter may require.
19
In addition, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may rely on the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP as to all matters of Maryland law.
(d) The Underwriter shall have received from Ernst & Young LLP, letters
dated, respectively, the date of this Agreement and the time of purchase
and addressed to the Underwriter in the forms approved by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriter.
(e) No amendment or supplement to the Registration Statement or
Prospectus, including documents deemed to be incorporated by reference
therein, shall have been made to which the Underwriter has objected in
writing.
(f) Prior to the time of purchase, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of the
Act; (ii) the Registration Statement and all amendments thereto, 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.
(g) Between the time of execution of this Agreement and the time of
purchase (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
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.
(h) Between the time of execution of this Agreement and the time of
purchase 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.
(i) The Company will at the time of purchase deliver to the Underwriter
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.
(j) The Company will at the time of purchase deliver to the Underwriter
a certificate signed by the President of the Company substantially in such
form approved
20
by the Underwriter and counsel to the Underwriter, 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.
(k) The Company shall have furnished to the Underwriter 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 the Underwriter 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 effective
before the offering of the Notes 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 the Underwriter, or by the Underwriter, by notifying
the Company.
The obligations of the Underwriter hereunder shall be subject to
termination in the absolute discretion of the Underwriter (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
the judgment of the Underwriter, make it impracticable to market the Notes, 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 there is a suspension or material
limitation in trading in securities generally on the New York Stock Exchange
(the "NYSE"), the American Stock Exchange or the Nasdaq Stock Market Inc.
("Nasdaq"), or minimum prices shall have been established thereon by the
Commission, or by such exchange or other regulatory body or governmental
authority having jurisdiction, or there is a suspension or material limitation
in trading in the Company's securities on the NYSE; or (iii) if there is a
failure, refusal or inability to perform by the Company in any material respect
any agreement on its part to be performed hereunder when and as required; or
(iv) if there is a failure by the Company to fulfill pursuant to Section 6 any
other condition to the obligations of the Underwriter hereunder when and as
required; or (v) a general moratorium on commercial banking activities is
declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; or (vi) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war; or (vii) the occurrence of any
21
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (vi) or (vii) in the judgment of the Underwriter makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Prospectus.
If the Underwriter 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 Underwriter of the Notes, as contemplated by this
Agreement, is not carried out by the Underwriter for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4, 5 and 8 hereof), and the Underwriter shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 8 hereof).
8. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter, its partners, directors, officers, employees and agents and any
person who controls the 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, the Underwriter or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic 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 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 the Underwriter to the Company expressly for use with reference to the
Underwriter in the Registration Statement, the Basic 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
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
22
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 Notes; PROVIDED, however, that, solely with
regard to clause (i), the foregoing indemnity agreement with respect to any
Basic Prospectus shall not inure to the benefit of the Underwriter or any person
controlling the Underwriter, if sufficient copies of the Prospectus were timely
delivered to the 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 the Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, the 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 the Underwriter or any such person
or otherwise. The 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 the 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 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 the 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
23
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) The Underwriter 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 the Underwriter to the Company
expressly for use with reference to the Underwriter in the Registration
Statement, the Basic 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, 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 the Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify the
Underwriter in writing of the institution of such Proceeding and the 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 the Underwriter
shall not relieve the Underwriter from any liability which it 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 the
Underwriter in connection with the defense of such Proceeding or the 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 the Underwriter (in which case the
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but the Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of the Underwriter), in any of which events such
fees and expenses shall be borne by the Underwriter and paid as incurred (it
being understood, however, that the 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). The
Underwriter shall not be liable for any settlement of any such Proceeding
effected without the written consent of the Underwriter but if
24
settled with the written consent of the Underwriter, the 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 8 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 8 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 Underwriter on
the other hand from the offering of the Notes 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
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities or claims, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriter 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 Underwriter, bear to the aggregate public offering price of the
Notes. The relative fault of the Company on the one hand and of the Underwriter
on the other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or omission
or alleged omission relates to information supplied by the Company or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any claim or
Proceeding.
(d) The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 8, the Underwriter
25
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Notes underwritten by the Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damage which the Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
8 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 the Underwriter, its partners, directors,
officers, employees or agents or any person (including each partner, officer,
director, employee or agent of such person) who controls the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the 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 Notes. The Company and the
Underwriter each 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 Notes, or in connection with the Registration Statement
or Prospectus.
9. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriter, 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.
10. 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.
11. 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 the Underwriter or any
indemnified party. The Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its
26
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.
12. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriter, the Company and to the extent
provided in Section 8 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 the Underwriter) shall acquire
or have any right under or by virtue of this Agreement.
13. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set forth
in the last sentence of the penultimate paragraph on the cover page of the
Prospectus Supplement and the statements set forth in the third and seventh
paragraphs under the caption "Underwriting" in the Prospectus Supplement
constitute the only information furnished by or on behalf of the Underwriter as
such information is referred to in Sections 3 and 8 hereof.
14. 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.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriter, the Company and their respective successors and assigns and any
successor or assign of any substantial portion of the Company's and the
Underwriter's respective businesses and/or assets.
16. MISCELLANEOUS. The Underwriter is not a bank. The Underwriter is a
separate entity from its lending and other affiliates and 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 the Underwriter 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.
Lending affiliates of the Underwriter may have lending relationships
with issuers of securities underwritten or privately placed by the Underwriters.
To the extent required under the securities laws, the Prospectus 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 the Underwriter.
THE ARTICLES OF AMENDMENT AND RESTATEMENT ESTABLISHING SENIOR HOUSING
PROPERTIES TRUST, DATED SEPTEMBER 20, 1999, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO, IS ▇▇▇▇ FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME
27
"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.
28
If the foregoing correctly sets forth the understanding between the
Company and the Underwriter, please so indicate in the space provided below for
the purpose, whereupon this letter and the Underwriter's acceptance shall
constitute a binding agreement between the Company and the Underwriter.
Very truly yours,
SENIOR HOUSING PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO and Treasurer
Accepted and agreed to as of the date first above written:
UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Director
29
SCHEDULE A
SUBSIDIARY NAME
2932 North 14 Corp.
CCC Alpha Investments Trust
CCC Delaware Trust
CCC Financing I Trust
CCC Financing Limited, L.P.
CCC Investments I, L.L.C.
CCC Leisure Park Corporation
CCC of Kentucky Trust
CCC Ohio Healthcare Trust
CCC Pueblo Norte Trust
CCC Retirement Communities II, L.P.
CCC Retirement Partners Trust
CCC Retirement Trust
CCC Senior Living Corporation
CCCP Senior Living LLC CCDE
CCDE Senior Living LLC
CCFL Senior Living LLC
CCOP Senior Living LLC
CCSL Senior Living LLC
Crestline Ventures LLC
CSL Group, Inc.
HRES1 Properties Trust
HRES2 Properties Trust
Leisure Park Venture Limited Partnership
LTJ Senior Communities LLC
Panther GenPar Trust
Panther Holdings Level I L.P.
SHOPCO-SD, LLC
SNH ALT Leased Properties Trust
SNH ALT Mortgaged Properties Trust
SNH Capital Trust Holdings
SNH Capital Trust I
SNH Capital Trust II
SNH Capital Trust III
SNH CHS Properties Trust
SNH/CSL Properties Trust
SNHST.▇▇▇, LLC
SNH TRS, Inc.
SPT-Michigan Trust
SPTBROOK Properties Trust
SPTGEN Properties Trust
SPTIHS Properties Trust
Schedule A-1
SPTMISC Properties Trust
SPTMNR Properties Trust
SPTMRT Properties Trust
SPTSUN II Properties Trust
SPTSUN Properties Trust
2
SCHEDULE B
MATERIAL SUBSIDIARIES
SPTMRT Properties Trust
SNH/CSL Properties Trust
Schedule B-1
SCHEDULE C
FOREIGN QUALIFICATIONS OF THE COMPANY
Massachusetts
FOREIGN QUALIFICATIONS OF SPTMRT PROPERTIES TRUST
Arizona
California
Florida
Maryland
Massachusetts
FOREIGN QUALIFICATIONS OF SNH/CSL PROPERTIES TRUST
Maryland
Massachusetts
Schedule C-1
SCHEDULE D
MARYLAND SUBSIDIARIES
CCC Alpha Investments Trust
CCC Delaware Trust
CCC Financing I Trust
CCC of Kentucky Trust
CCC Ohio Healthcare Trust
CCC Pueblo Norte Trust
CCC Retirement Partners Trust
CCC Retirement Trust
HRES1 Properties Trust
HRES2 Properties Trust
PantherGenpar Trust
SPT-Michigan Trust
SNH ALT Leased Properties Trust
SNH ALT Mortgaged Properties Trust
SNH Capital Trust Holdings
SNH Capital Trust I
SNH Capital Trust II
SNH Capital Trust III
SNH CHS Properties Trust
SNH/CSL Properties Trust
SPTBROOK Properties Trust
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