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DECLARATION OF TRUST
SNH CAPITAL TRUST II
DATED AS OF MAY 4, 2001
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DECLARATION OF TRUST
OF
SNH CAPITAL TRUST II
MAY 4, 2001
DECLARATION OF TRUST ("Declaration") dated and effective as of May 4,
2001 by the Trustees (as defined herein), the Sponsor (as defined herein), and
by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Maryland Business Trust Act for the purpose of issuing
and selling certain securities representing undivided beneficial interests in
the assets of the Trust and investing the proceeds thereof in certain Debt
Securities of the Debt Security Issuer (as defined herein);
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration of Trust as modified, supplemented or amended
from time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act.
"Business Day" means any day other than a day on which banking
institutions in New York, New York or in Boston, Massachusetts are authorized or
required by law to close.
"Business Trust Act" means Title 12 of the Corporations and
Associations Article of the Annotated Code of Maryland, as it may be amended
from time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means securities representing undivided beneficial
ownership interests in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates and (b) any holder of Securities.
"Debt Security Issuer" means the Parent in its capacity as the issuer
of the Debt Securities under the Indenture.
"Debt Securities" means the series of debt securities to be issued by
the Debt Security Issuer and acquired by the Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3(b).
"Indemnified Person" means a Parent Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means an indenture to be entered into between the Parent
and the Indenture Trustee and any indenture supplemental thereto pursuant to
which the Debt Securities are to be issued.
"Indenture Trustee" means the trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor trustee.
"Parent" means Senior Housing Properties Trust, a Maryland real estate
investment trust, the parent of the Sponsor, or any successor thereto.
"Parent Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Person" means a legal person, including any individual, corporation,
real estate investment trust, business trust, estate, partnership, joint
venture, association, joint stock
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company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" means securities representing undivided
beneficial ownership interests in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Property Trustee" has the meaning set forth in Section 3.3.
"Regular Trustee" means any Trustee other than the Property Trustee (as
hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Sponsor" means SNH Capital Holdings, a Maryland business trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "SNH Capital Trust II."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Senior Housing
Properties Trust, 400 Centre Street, Newton, Massachusetts 02458. At any time,
the Regular Trustees may designate another principal office. The address of the
Maryland office of the Trust is c/o Ballard Spahr Andrews & Ingersoll, LLP, 300
East Lombard Street, Baltimore, Maryland 21202.
SECTION 2.3 Resident Agent.
The name of the resident agent of the Trust in the State of Maryland is
James J. Hanks, Jr., 300 East Lombard Street, Baltimore, Maryland 21202. The
resident agent is a citizen of and resides in the State of Maryland. At any
time, the Regular Trustees may designate by written notice to the Sponsor
another resident agent who is a citizen of and resides in the State of Maryland
or which is a Maryland corporation.
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SECTION 2.4 Purpose.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under the Business Trust Act, and that this
Declaration constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust in the
office of the Maryland State Department of Assessments and Taxation in the form
attached hereto. The Trust is hereby established by the Sponsor and the Trustees
for the purposes of (i) issuing Preferred Securities and investing the proceeds
thereof in Debt Securities, (ii) issuing and selling Common Securities to the
Sponsor in exchange for cash and investing the proceeds thereof in additional
Debt Securities and (iii) engaging in such other activities as are necessary,
convenient or incidental thereto. The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
Concurrent with the first issuance of any Securities by the Trust, the
Sponsor and the Trustees intend to enter into an amended and restated
Declaration of Trust or Trust Agreement, satisfactory to each such party and
substantially in the form included as an exhibit to the Securities Act
Registration Statement referred to below at the time such registration statement
becomes effective under the Securities Act, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and the Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Declaration of Trust or Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or,
in the case of the Regular Trustees, as may be necessary to obtain, prior to
such execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.
SECTION 2.5 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no Person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.6 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.7 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more
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than one series of Preferred Securities and no more than one series of
Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities and the issuance of
the Securities shall be limited to a one-time, simultaneous issuance of
both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a
registration statement on Form S-3 prepared by the Sponsor
(the "Registration Statement"), including any amendments
thereto in relation to the registration of the Preferred
Securities under the Securities Act;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file on behalf of the Trust, with
the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance of any Preferred Securities
a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be
listed on such exchange or national market, as the case may
be;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor relating to the registration
of the Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act, if the Sponsor in its sole discretion
determines that such a filing is necessary or appropriate; and
(v) negotiate the terms of, and execute and enter
into, on behalf of the Trust, an underwriting agreement and
pricing agreement providing for the sale of the Preferred
Securities substantially in the form included as an exhibit to
the Registration Statement at the time it becomes effective
under the Securities Act;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses that are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing.
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SECTION 2.8 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the State Department of Assessments and
Taxation of Maryland.
SECTION 2.9 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for forty (40) years from the date hereof.
SECTION 2.10 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing of any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(c) at the sole discretion of the Sponsor, to prepare for
filing by the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto, if the Sponsor in its
sole discretion determines that such a filing is necessary or
appropriate; and
(e) to negotiate the terms of an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities.
SECTION 2.11 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
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ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be two (2), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however that the number
of Trustees shall in no event be less than two (2); provided further that there
shall be at least one trustee who is an employee or officer of, or is affiliated
with the Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
(a) The initial Regular Trustees shall be:
Gerard M. Martin
Barry M. Portnoy
(b) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent
of, any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
that the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6; and a Regular Trustee may, by
power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purposes of
signing any documents that the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Property Trustee.
Prior to the issuance of the Securities, the Sponsor shall appoint
another trustee (the "Property Trustee") meeting the requirements of an eligible
trustee of the Trust Indenture Act of 1939, as amended, by the execution of an
amendment to this Declaration executed by the Regular Trustees, the Sponsor and
the Property Trustee.
Notwithstanding any other provision of this Declaration, the Property
Trustee shall not be entitled to exercise any of the powers, nor shall the
Property Trustee have any of the duties and responsibilities of the Trustees
described in this Declaration. Notwithstanding anything herein to the contrary,
the Property Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Property Trustee is
expressly obligated or authorized to undertake under this Declaration and except
for the negligence or willful misconduct of the Property Trustee. The Property
Trustee may resign as a Trustee of the Trust by giving not less than 30 days
written notice of resignation to any Regular Trustee; provided, however that no
such resignation of the Property Trustee shall be effective until a successor
Property Trustee has been appointed and has accepted such appointment by
instrument executed
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by such successor Property Trustee and delivered to the Trust, the Sponsor and
the resigning Property Trustee.
SECTION 3.4 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) (i) To the maximum extent that Maryland law in effect from
time to time permits limitation of the liability of trustees
and officers of a business trust, no Regular Trustee or
Property Trustee of officer of the Trust shall be liable to
the Trust or its beneficial owners for money damages. Neither
the amendment nor repeal of this Section 4.1(a), nor the
adoption of any other provision of this Declaration
inconsistent with this Section 4.1(a), shall apply to or
affect in any respect the applicability of the receding
sentence with respect to any act or failure to act which
occurred prior to such amendment, repeal or adoption.
(ii) Subject to Section 4.1(a)(i) of this
Declaration, no Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the
Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on
such Indemnified Person by this Declaration or by law, except
that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such
acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
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SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities, the Indemnified Person shall resolve such conflict
of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) (i) The Sponsor shall, to the maximum extent permitted by
Maryland law, indemnify, and pay or reimburse reasonable
expenses in advance of final
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disposition of a proceeding to, any Parent Indemnified Person
from all claims and liabilities to which such person may
become subject or which such person may incur by reason of his
status of a present or former Parent Indemnified Person.
(ii) Expenses (including attorneys' fees) incurred by
a Parent Indemnified Person in defending a proceeding referred
to in paragraph (i) of this Section 4.3(a) shall be paid by
the Sponsor in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of
such Parent Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section
4.3(a). Notwithstanding the foregoing, no advance shall be
made by the Sponsor if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote
of a quorum of disinterested Regular Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the holder(s) of
the Common Securities of the Trust, that, based upon the facts
known to the Regular Trustees, independent legal counsel or
the holder(s) of the Common Securities of the Trust at the
time such determination is made, such Parent Indemnified
Person acted in bad faith or in a manner that such Person did
not believe to be in or not opposed to the best interests of
the Trust, or, with respect to any criminal proceeding, that
such Parent Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall
any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder(s) of the Common
Securities of the Trust reasonably determine that such Person
deliberately breached his duty to the Trust or to the
holder(s) of its Common Securities or Preferred Securities.
(iii) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
shareholders or disinterested directors of the Sponsor or of
the holder(s) of the Preferred Securities of the Trust or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All
rights to indemnification under this Section 4.3(a) shall be
deemed to be provided by a contract between the Sponsor and
each Parent Indemnified Person who serves in such capacity at
any time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
(iv) The Sponsor or the Trust may purchase and
maintain insurance on behalf of any Person who is or was a
Parent Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor
would have the power to indemnify him against such liability
under the provisions of this Section 4.3(a).
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(v) For purposes of this Section 4.3(a), references
to "the Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any Person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 4.3(a)
shall, unless otherwise provided when authorized or ratified,
continue as to a Person who has ceased to be a Parent
Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a Person.
(b) The Sponsor agrees to indemnify (i) the Property Trustee,
(ii) any Affiliate of the Property Trustee, and (iii) any officers,
directors, stockholders, members, partners, employees, representatives,
nominees, custodians or agents of the Property Trustee (each of the
Persons in (i) through (iii) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The provisions of this Section 4.3(b) shall
survive the termination of this Declaration or the resignation or
removal of the Property Trustee.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Property Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. None of any Covered Person, the Sponsor or the Property Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Property Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Property Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary, trustee or agent for,
or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
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ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided, however, that if the Property Trustee has
been appointed and the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the amendment shall also be approved in
writing by the Property Trustee.
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution
or its equivalent with respect to the Sponsor or the
revocation of the Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the
consent of all of the Regular Trustees and the Sponsor; and
(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file, after
satisfaction of all liabilities of the Trust in accordance with
applicable law, a certificate of cancellation with the State Department
of Assessments and Taxation of Maryland and the Trust shall terminate.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Maryland
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and
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agreements in this Declaration by the Sponsor and the Trustees shall bind and
inure to the benefit of their respective successors and assigns, whether or not
so expressed.
SECTION 5.5 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.6 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
/s/ Gerard M. Martin
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Gerard M. Martin
Regular Trustee
/s/ Barry M. Portnoy
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Barry M. Portnoy
Regular Trustee
SNH CAPITAL TRUST HOLDINGS,
as Sponsor
By: /s/ David J. Hegarty
---------------------------------
David J. Hegarty
President
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EXHIBIT A
SNH CAPITAL TRUST II
FORM OF CERTIFICATE OF TRUST
THIS IS TO CERTIFY THAT:
FIRST: The undersigned trustees hereby form a business trust pursuant
to the laws of the State of Maryland.
SECOND: The name of the business trust (the "Trust") is:
SNH Capital Trust II
THIRD: The address of the Trust's principal office in the State of
Maryland is c/o Ballard Spahr Andrews & Ingersoll, LLP, 300 East Lombard Street,
Baltimore, Maryland 21202, Attention: James J. Hanks, Jr.
FOURTH: The name and business address of the Trust's resident agent are
James J. Hanks, Jr., c/o Ballard Spahr Andrews & Ingersoll, LLP, 300 East
Lombard Street, Baltimore, Maryland 21202.
The undersigned, being all of the trustees of the Trust, acknowledge
under the penalties of perjury, that to the best of their knowledge and belief,
the facts stated herein are true.
IN WITNESS WHEREOF, each of the undersigned trustees have signed this
Certificate of Trust this ____ day of May, 2001.
_________________________________
Gerard M. Martin
_________________________________
Barry M. Portnoy