Exhibit 1.1
SENIOR HOUSING PROPERTIES TRUST
$200,000,000 Aggregate Principal Amount
8 5/8% Senior Notes Due 2012
UNDERWRITING AGREEMENT
December 13, 2001
UNDERWRITING AGREEMENT
December 13, 2001
UBS Warburg LLC
Dresdner Kleinwort Wasserstein
-- Grantchester, Inc.
First Union Securities, Inc.
BMO Nesbitt Burns Corp.
CIBC World Markets Corp.
PNC Capital Markets, Inc.
SG Cowen Securities Corporation
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Senior Housing Properties Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "COMPANY"), proposes to
issue and sell to the underwriters named in SCHEDULE A annexed hereto (the
"UNDERWRITERS") $200,000,000 in aggregate principal amount of its 8 5/8% Senior
Notes Due 2012 (the "NOTES"). The Notes are to be issued pursuant to an
indenture to be dated as of December 20, 2001, between the Company and State
Street Bank and Trust Company, as trustee (the "TRUSTEE"), as supplemented by a
first supplemental indenture thereto to be dated as of December 20, 2001 (the
"Indenture"). Copies of the Indenture, in substantially final form, have been
delivered to each of the Underwriters.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "ACT"), a registration statement (file
number 333-60392) on Form S-3 under the Act (the "REGISTRATION STATEMENT"),
including 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
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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 Underwriters.
The term "REGISTRATION STATEMENT" as used in this Agreement means the
registration statement, as amended at the time it became effective, as
supplemented or amended prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents incorporated
by reference or deemed to be incorporated by reference therein. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed and must be declared
effective before the offering of the 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 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 May 21, 2001, as filed
with the Commission pursuant to Rule 424(b) included in the Registration
Statement. The term "PREPRICING PROSPECTUS" as used in this Agreement means the
preliminary form of the Prospectus Supplement (as defined herein) subject to
completion, dated December 6, 2001, used in connection with the offering of the
Notes. 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 Prepricing Prospectus, any Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of the registration statement, the Registration Statement, the Basic Prospectus,
such Prepricing Prospectus, such Prospectus Supplement or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "INCORPORATED DOCUMENTS" means the
documents which are incorporated by reference in the registration statement, the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, any
Prospectus Supplement, the Prospectus, or any amendment or supplement thereto.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. On the basis of the representations and
warranties herein and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, each
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Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of 97.163% of the principal amount thereof (the "PURCHASE
PRICE"), the principal amount of Notes set forth opposite the name of such
Underwriter in SCHEDULE A annexed hereto (or such principal amount of Notes
increased as set forth in Section 8 hereof).
The Company is advised by you that the Underwriters intend (i) to make
a public offering of the Notes as soon after the date hereof as in your judgment
is advisable and (ii) initially to offer the Notes upon the terms set forth in
the Prospectus.
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 you through the facilities of the Depository Trust Company ("DTC")
for the respective accounts of the Underwriters. Such payment and delivery shall
be made at 10:00 A.M., New York City time, on December 20, 2001 (unless another
time shall be agreed to by you or unless postponed in accordance with the
provisions of Section 8 hereof). The time at which such payment and delivery are
actually made is hereinafter sometimes called the "TIME OF PURCHASE."
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Underwriters that:
(a) No order preventing or suspending the use of the Basic Prospectus,
any Prepricing Prospectus, the Prospectus Supplement or the Prospectus is in
effect and no proceedings for such purpose are pending or, to the knowledge
of the Company, threatened by the Commission or the securities authority of
any state or other jurisdiction. The Registration Statement has become
effective under the Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the
Commission or the securities authority of any state or other jurisdiction.
(b) (i) The Company is eligible to use Form S-3 and the offering of
the 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, any Prepricing Prospectus, the Prospectus Supplement
and the Prospectus comply and, as may be amended or supplemented, if
applicable, will comply in all material respects with the Act, 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, any
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Prepricing Prospectus, the Prospectus Supplement or the Prospectus based
upon information relating to any Underwriter furnished to the Company by
such Underwriter through you expressly for use therein 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 the Registration Statement and/or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading.
(d) 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 Underwriters 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.
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(h) The Company is duly qualified and is in good standing in each
jurisdiction in which the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to so qualify in any such jurisdiction would not individually or in
the aggregate have a material adverse effect on the business, prospects,
properties, condition (financial or otherwise) or results of 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 B hereto (collectively, the "SUBSIDIARIES").
Other than the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt of any
other corporation or have any direct or indirect equity interest or
ownership of long-term debt in any firm, partnership, joint venture, limited
liability company, association or other entity except for the Company's
ownership of 1,000,000 common shares of HRPT Properties Trust and 100 common
shares of Marriott International, Inc. The Subsidiaries identified in
SCHEDULE C hereto have no material assets, liabilities, operations or
properties. Each Subsidiary has been duly incorporated or formed and is
validly existing as a corporation or other entity, as the case may be, in
good standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite corporate, trust, partnership or other
power to acquire and own, lease and operate its properties and to conduct
its business, as described in the Registration Statement and the Prospectus;
and each Subsidiary is duly qualified and in good standing to do business in
each jurisdiction in which the nature of its business or the ownership or
leasing of the property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect.
(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), its Declaration of Trust, charter or by-laws
or other organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any Subsidiary is subject or by which any of them or
any of their properties is bound or affected, the effect of which would,
individually or in the aggregate, have a Material Adverse Effect or decree,
order or judgment applicable to the Company or any Subsidiary.
(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
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any Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the property or assets of the Company or any
Subsidiary is subject. In addition, such action will not result in any
violation of the provisions of the Declaration of Trust or the bylaws of
the Company or
any 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 Underwriters.
(n) Except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, 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, 2000 and is incorporated by reference in the Registration
Statement and Prospectus, are independent public accountants as required by
the Act.
(p) KPMG LLP, whose report on the financial statements with respect to
42 nursing home facilities was filed with the Commission as part of the
Company's Current Report on Form 8-K/A and is incorporated by reference in
the Registration Statement and Prospectus, are independent public
accountants as required by the Act.
(q) Arthur Andersen LLP, whose report on the financial statements with
respect to 31 facilities ("CRESTLINE FACILITIES") to be acquired by the
Company pursuant to a Stock Purchase Agreement, dated August 9, 2001, among
the Company, SNH/CSL Properties Trust, Crestline Capital Corporation and CSL
Group, Inc. was filed with the Commission as part of the Company's Current
Report on Form 8-K, dated September 21, 2001 (the "SEPTEMBER 21, 2001 8-K"),
and is incorporated by reference in the Registration Statement and
Prospectus, are independent public accountants as required by the Act.
(r) 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
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Registration Statement or any Incorporated Document, have been so described
or filed or will be filed prior to the time of purchase as required.
(s) 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 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
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Company or any of the Subsidiaries that individually or in the aggregate
would have a Material Adverse Effect.
(t) Each of the Company and the Subsidiaries have good and marketable
title in fee simple or ground leases to the properties disclosed in the
Prospectus as being owned by them (the "PROPERTIES"), free and clear of all
liens, encumbrances, claims, mortgages, deeds of trust, restrictions,
security interests and defects ("PROPERTY ENCUMBRANCES"), except for: (x)
the leasehold interests of lessees in the Company's and the Subsidiaries'
properties held under lease (the "LEASES") and (y) any other Property
Encumbrances that would not, individually or in the aggregate, have a
Material Adverse Effect. All Property Encumbrances on or affecting the
properties of the Company or any of the Subsidiaries which are required to
be disclosed in the Prospectus are disclosed therein. Each of the Leases
pertaining to the properties of the Company or any of the Subsidiaries has
been duly authorized by the Company or one of the Subsidiaries, as
applicable, and is a valid and binding agreement of the Company or one of
the Subsidiaries, as applicable, and, to the Company's knowledge, each other
party thereto, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles. To the
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
such defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(u) 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.
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(v) 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, and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements.
The other financial and statistical data set forth in the Registration
Statement and the Prospectus are accurately presented and prepared on a
basis consistent with such financial statements and books and records of the
Company. There are no financial statements (historical or pro forma) that
are required to be included in the Registration Statement and the Prospectus
that are not included as required.
(w) 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,
or (vi) to the Company's knowledge, any material adverse change, or any
prospective material adverse change, in the business, properties, condition
(financial or otherwise) or results of operations of the business of the
Crestline Facilities, as described in the Company's September 21, 2001
Current Report on Form 8-K, taken as a whole. None of the Company nor the
Subsidiaries has any material contingent obligation which is not disclosed
in the Registration Statement.
(x) 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
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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.
(y) 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.
(z) 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.
(aa) 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.
(bb) The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(cc) 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.
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(dd) 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").
(ee) 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").
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 you 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 you 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 Underwriters in New York City as many
copies of the Prospectus (or of the Prospectus as amended or supplemented if
the Company shall have made any amendments or supplements thereto) as the
Underwriters may reasonably request for the purposes contemplated by the
Act; in case any Underwriter is required to deliver a prospectus beyond the
nine-month period referred to in Section 10(a)(3) of the Act in connection
with the sale of the 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 you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise you promptly
of any proposal to amend or supplement the Registration Statement or
Prospectus, including by filing any documents that would be incorporated
therein by reference and to file no such amendment or supplement to which
you shall object in writing;
(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 you of such filing;
12
(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 you promptly and, if requested
by you, will confirm such advice in writing, when the registration statement
or such post-effective amendment has become effective;
(f) to furnish to you and, upon request, to each of the other
Underwriters for a period of three years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its shareholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission, (iii) copies of documents or reports
filed with any national securities exchange on which any class of securities
of the Company is listed, and (iv) such other information as you may
reasonably request regarding the Company or the Subsidiaries, in each case
as soon as such communications, documents or information becomes available;
PROVIDED, HOWEVER, that in no case shall the Company be required to furnish
materials pursuant to this paragraph which are filed and publicly accessible
via EDGAR;
(g) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to
the 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 Underwriters promptly such amendments or supplements to such Prospectus
as may be necessary to reflect any such change and to furnish you a copy of
such proposed amendment or supplement before filing any such amendment or
supplement with the Commission;
(h) to make generally available to its security holders, and to deliver
to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement (as defined
in Rule 158(c) of the Act) as soon as is reasonably practicable after the
termination of such twelve-month period;
(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;
13
(j) to furnish to you one conformed copy of the Registration Statement,
as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein) and sufficient conformed copies of the foregoing (other than
exhibits) for distribution of a copy to each of the other Underwriters;
(k) to furnish to you 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 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, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the issuance,
sale and delivery of the 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 Underwriters 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 Underwriters)
and the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers and (v) the filing for
review of the public offering of the Notes by the NASDR (including the legal
fees and filing fees and other disbursements of counsel to the Underwriters
with respect thereto), (vi) any listing of the 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 you, before filing with the Commission subsequent to
the effective date of the Registration Statement and during the period
referred to in paragraph (a)(vii) above, a copy of any document proposed to
be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act; and
(o) to not, without the prior written consent of UBS Warburg LLC,
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,
14
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 December 31,
2001; 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 UNDERWRITERS' EXPENSES. If the Notes are not
delivered for any reason other than the termination of this Agreement
pursuant to clause (ii), (iii) or (iv) of the second paragraph of Section 7
hereof or pursuant to the last paragraph of Section 8 hereof or the default
by one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described in
Section 4 hereof, reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase an opinion
of Sullivan & Worcester LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase with reproduced copies for each
of the other Underwriters and in form satisfactory to Dewey Ballantine LLP,
counsel for the Underwriters, stating that:
(i) the Company has been duly formed, is existing as a real
estate investment trust and is in good standing under the laws of the
State of Maryland, with trust power to own, lease and operate its
properties and conduct its business in all material respects as
described in the Registration Statement and the Prospectus, to execute
and deliver this Agreement and to issue, sell and deliver the Notes as
herein contemplated;
(ii) the Company is duly qualified to transact business and is
in good standing in each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than those jurisdictions as to which the failure
to be so qualified or in good standing could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect;
(iii) each Subsidiary of the Company identified in SCHEDULE D
attached hereto (each a "MATERIAL SUBSIDIARY") is a corporation or
other legal entity duly formed, existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a
foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the
15
failure to be so qualified or in good standing could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Each Material Subsidiary has the corporate, trust, partnership
or other power to own or hold under lease the properties it purports to
own or hold under lease and to transact the business it transacts and
proposes to transact. All of the issued and outstanding shares of
beneficial ownership of, or other ownership interests in, of each
Material Subsidiary has been duly authorized and validly issued, is
fully paid and except as to Material Subsidiaries that are
partnerships, non-assessable, and except for SPTMRT Properties Trust,
is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien or encumbrance;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company, and is a legal, valid and binding agreement
of the Company, enforceable in accordance with its terms, except as
enforcement of the same may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and except as to those provisions relating to indemnities
for liabilities arising under the Act as to which no opinion need be
expressed;
(v) the 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
16
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, 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;
17
(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 "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", "Our tenants and property operations",
"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, 2000
under the captions "Business--Financing Policies" (with respect to the
first paragraph only), "Business--Regulation and Reimbursement",
"Business--Government Regulations and Rate Setting" and "Federal Income
Tax Considerations"; and (iii) in the September 21, 2001 8-K under the
captions "B. Crestline Transaction" and "C. Supplementary Federal
Income Tax Considerations" in each case insofar as such statements
purport to summarize matters arising under Maryland, Massachusetts or
New York law or the federal law of the United States, or provisions of
documents as to which the Company is a party specifically referred to
therein, are accurate in all material respects.
In addition, such counsel shall state that, in the opinion of such
counsel, and subject to the restrictions and limitations set forth in such
counsel's tax opinion filed as an exhibit to the Registration Statement and
reasonably acceptable to you, (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
Underwriters at which the contents of the Registration Statement and Prospectus
were discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements
18
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
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, Sullivan & Worcester LLP may
rely upon an opinion, dated as of the time of purchase, of Ballard Spahr Andrews
& Ingersoll, LLP as to matters governed by Maryland law, provided that such
reliance is expressly authorized by such opinion and a copy of such opinion is
delivered to the Underwriters and is, in form and substance, satisfactory to the
Underwriters and counsel for the Underwriters. In addition, in rendering such
opinion, such counsel may state that their opinion as to laws of the State of
Delaware is limited to the Delaware General Corporation Law and that their
opinion with respect to the qualification of the Company and is Subsidiaries to
do business in jurisdictions other than their respective jurisdiction of
organization is based solely upon certificates to such effect issued by an
appropriate official of the applicable jurisdictions.
(b) The Company shall furnish to you at the time of purchase
an opinion of Ballard Spahr Andrews & Ingersoll, LLP, special Maryland
counsel of the Company, addressed to the Underwriters, and dated the
time of purchase with reproduced copies for each of the other
Underwriters and in form satisfactory to Dewey Ballantine LLP, counsel
for the Underwriters, stating that:
(i) the Company has been duly formed, is existing as
a real estate investment trust and is in good standing under
the laws of the State of Maryland, with trust power to own,
lease and operate its properties and conduct its business in
all material respects as described in the Registration
Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Notes as herein
contemplated;
(ii) each Subsidiary of the Company identified in
SCHEDULE E attached hereto (each a "MARYLAND SUBSIDIARY") is a
corporation or other legal entity duly formed, existing and in
good standing under the laws of its jurisdiction of
organization. Each Maryland Subsidiary has the trust power to
own or hold under lease the properties it purports to own or
hold under lease and to transact the business it transacts and
proposes to transact. All of the issued and outstanding shares
of beneficial interest of each Maryland Subsidiary have been
duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or
through
19
subsidiaries, and to such counsel's knowledge, except for
SPTMRT Properties Trust, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(iii) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated
hereby and by the Registration Statement do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time, or both, would result in any breach of, or
constitute a default under) (A) any provisions of the
Declaration of Trust, charter or by-laws or other
organizational documents of the Company or any of the Maryland
Subsidiaries or (B) any local or state Maryland law or
administrative regulation applicable to the Company and the
Maryland Subsidiaries;
(iv) the Company has authorized and outstanding
shares of beneficial interest as set forth or incorporated by
reference in the Registration Statement and the Prospectus;
the outstanding shares of beneficial interest of the Company
have been duly and validly authorized and issued by all
necessary trust action and are fully paid, nonassessable and
free of any preemptive rights, resale rights, rights of first
refusal and similar rights under the Maryland REIT Law;
(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
(i) the Registration Statement and the Prospectus under the
caption "Description of certain provisions of Maryland law and
of our declaration of trust and bylaws" and in each case
insofar as such statements purport to summarize matters
arising under Maryland law are accurate in all material
respects;
(vii) to such counsel's knowledge, neither the
Company nor any of the Maryland Subsidiaries is in violation
of its Declaration of Trust, charter or by-laws or other
organizational documents or in violation of any local or 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
20
Maryland Subsidiaries that is a REIT have been duly authorized
and validly issued, are fully paid and non-assessable, are
owned by the Company.
(c) You shall have received at the time of purchase an opinion
of Dewey Ballantine LLP, counsel for the Underwriters, 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 Underwriters may require. In addition, Dewey
Ballantine LLP may rely on the opinion of Ballard Spahr Andrews &
Ingersoll, LLP as to all matters of Maryland law.
(d) You shall have received from Ernst & Young LLP, a letter
dated, respectively, the date of this Agreement and the time of
purchase and addressed to the Underwriters (with reproduced copies for
each of the Underwriters) in the forms approved by Dewey Ballantine
LLP, counsel for the Underwriters.
(e) You shall have received from KPMG LLP, a letter dated,
respectively, the date of this Agreement and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in
the form approved by Dewey Ballantine LLP, counsel for the
Underwriters.
(f) You shall have received from Arthur Andersen LLP, a letter
dated, respectively, the date of this Agreement and the time of
purchase and addressed to the Underwriters (with reproduced copies for
each of the Underwriters) in the forms approved by Dewey Ballantine
LLP, counsel for the Underwriters.
(g) No amendment or supplement to the Registration Statement
or Prospectus, including documents deemed to be incorporated by
reference therein, shall have been to which you have objected in
writing.
(h) 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.
(i) 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.
21
(j) 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.
(k) The Company will at the time of purchase deliver to you a
certificate of two of its executive officers to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of such date, that the Company has
performed such of its obligations under this Agreement as are to be
performed at or before the time of purchase and the conditions set
forth in paragraphs (g), (h), (i) and (j) of this Section 6 have been
met.
(l) The Company will, at the time of purchase deliver to you a
certificate signed by the President of the Company substantially in
such form approved by you and counsel to the Underwriters, respecting
the Company's compliance, both prior to and after giving effect to the
transactions contemplated hereby, with the financial covenants set
forth in the Company's credit agreement and certain other agreements
and instruments respecting outstanding indebtedness of the Company and
the Subsidiaries.
(m) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase as you may reasonably request.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
or an Abbreviated Registration Statement to be declared or become 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 you, or by you, as Underwriters, by notifying the
Company.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the aggregate principal amount of the Notes (i) if, since the time of
execution of this Agreement or the respective dates as of which information is
given in the Registration Statement and Prospectus, (y) there has been any
material adverse and unfavorable change, financial or otherwise (other than as
referred to in the Registration Statement and Prospectus), in the business,
prospects, properties, condition (financial or otherwise) or results of
operations of the Company and the Subsidiaries taken as a whole, which would, in
your judgment or in the judgment of such group of Underwriters, make it
impracticable to market the 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
22
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any of the Subsidiaries by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act or (ii) if, at any time prior to the time of
purchase trading in securities on the NYSE, the American Stock Exchange or the
Nasdaq Stock Market Inc. ("Nasdaq") shall have been suspended or limitations or
minimum prices shall have been established on the NYSE, the American Stock
Exchange or the Nasdaq or (iii) if, at any time prior to the time of purchase a
banking moratorium shall have been declared either by the United States or New
York State authorities, or (iv) if, at any time prior to the time of purchase
the United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Notes.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter, telegram or telecopy.
If the sale to the Underwriters of the Notes, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4, 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6 and 7,
if any Underwriter shall default in its obligation to take up and pay for the
Notes to be purchased by it hereunder (otherwise than for reasons sufficient to
justify the termination of this Agreement under the provisions of Section 7
hereof) and if the principal amount of the Notes which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total aggregate principal amount of the Notes, the non-defaulting
Underwriters shall take up and pay for (in addition to the principal amount of
the Notes they are obligated to purchase pursuant to Section 1 hereof) the
principal amount of the Notes agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Notes shall be taken up and paid for
by such non-defaulting Underwriter or Underwriters in such numbers as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Notes shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate principal
amount of the Notes set opposite the names of such non-defaulting Underwriters
in SCHEDULE A.
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Prospectus and other documents may be
effected.
23
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in SCHEDULE A.
If the aggregate principal amount of the Notes which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total
aggregate principal amount of the Notes which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the
Company shall make arrangements within the five business day period stated above
for the purchase of all the principal amount of the Notes which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part
of the Company to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors, officers, employees and agents and any
person who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, any
Prospectus Supplement or in the Prospectus (or in any of the foregoing as the
same may at any time be amended or supplemented), or arises out of or is based
upon any omission or alleged omission to state a material fact required to be
stated in the Registration Statement, the Basic Prospectus, any Prepricing
Prospectus, any Prospectus Supplement or the Prospectus (or in any of the
foregoing as the same may at any time be amended or supplemented) or necessary
to make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such Underwriter
in the Registration Statement, the Basic Prospectus, any Prepricing Prospectus,
any Prospectus Supplement or the Prospectus (or in any of the foregoing as the
same may at any time be amended or supplemented) or arises out of or is based
upon any omission or alleged omission to state a material fact in connection
with such information required to be stated in the Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, any Prospectus Supplement or the
Prospectus (or in any of the foregoing as the same may at any time be amended or
supplemented) or necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement made by the Company in Section 3 of
this Agreement or the failure by the Company to perform when and as required any
agreement or covenant contained herein or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual materials
provided by the Company or based upon
24
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 or Prepricing Prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting such
losses, claims, damages or liabilities purchased Securities, or any person
controlling the Underwriter, if sufficient copies of the Prospectus were timely
delivered to such Underwriter pursuant to Section 4 hereof and a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not given or sent to such person, if
required by law to have been delivered, at or prior to the written confirmation
of the sale of the Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
If any action, suit or proceeding (together, a "PROCEEDING") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, such Underwriter
or such person shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses related thereto; PROVIDED, HOWEVER,
that the omission to so notify the Company shall not relieve the Company from
any liability which the Company may have to any Underwriter or any such person
or otherwise. Such Underwriter or such person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the Company (in which case the Company shall not have
the right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the Company and paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any such Proceeding effected without its prior written consent but
if settled with the prior written consent of the Company, the Company agrees to
indemnify and hold harmless any Underwriter and any such person from and against
any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior
25
written consent of the indemnified party, effect any settlement of any pending
or threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its trustees, officers, employees and agents, and any
person who controls the Company within the meaning of Section 15 of the Act, or
Section 20 of the Exchange Act, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company or any such person may incur under the Act,
the Exchange Act, or common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished by or on behalf of such Underwriter through you to
the Company expressly for use with reference to such Underwriter in the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the
Prospectus Supplement or in the Prospectus (or in any of the foregoing as such
document may at any time be amended or supplemented) or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus
Supplement or the Prospectus (or in any of the foregoing as such document may at
any time be amended or supplemented) or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, PROVIDED, HOWEVER, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the
26
written consent of such Underwriter but if settled with the written consent of
such Underwriter, such Underwriter agrees to indemnify and hold harmless the
Company and any such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the 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 Underwriters 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 Underwriters on the
other shall be deemed to be in the same respective proportion as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Notes. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission relates to information supplied
by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any claim or Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (c)
27
above. Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
9 and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors,
officers, employees or agents or any person (including each partner, officer,
director, employee or agent of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its trustees, officers, employees or agents or any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Notes. The Company and each
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company's officers, trustees, employees or agents in connection with the
issuance and sale of the Notes, or in connection with the Registration Statement
or Prospectus.
10. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 299 Park Avenue, New York, New York 10171, Attention: Syndicate
Department, with a copy to Dewey Ballantine LLP, 1301 Avenue of the Americas,
New York, New York 10019, Attention: Frederick W. Kanner, 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 400 Centre Street, Newton, Massachusetts 02458,
Attention: David J. Hegarty, President and Chief Operating Officer, with a copy
to Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts
02109, Attention: Alexander A. Notopoulos, Jr., Esq.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "CLAIM"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by
28
any third party against an Underwriter or any indemnified party. Each
Underwriter and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) waives all right
to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company and may be enforced in any other courts in the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company and to the extent
provided in Section 9 hereof the controlling persons, directors and officers
and, if applicable, trustees referred to in such Section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
14. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the pertinent sentence on the last 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 Underwriters as
such information is referred to in Sections 3 and 9 hereof.
15. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts that together shall constitute one and the same agreement
among the parties.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. MISCELLANEOUS. Each of the Underwriters is not a bank. Each of the
Underwriters 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 any of the Underwriters 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 each of the Underwriters may have lending
relationships with issuers of securities underwritten or privately placed by one
or more of 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 any of the Underwriters.
THE ARTICLES OF AMENDMENT AND RESTATEMENT ESTABLISHING SENIOR HOUSING
PROPERTIES TRUST, DATED SEPTEMBER 2, 1999, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO, IS
29
DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE
STATE OF MARYLAND, PROVIDES THAT THE NAME "SENIOR HOUSING PROPERTIES TRUST"
REFERS TO THE TRUSTEES UNDER THE DECLARATION OF TRUST, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF
SENIOR HOUSING PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, SENIOR HOUSING PROPERTIES TRUST. ALL PERSONS
DEALING WITH SENIOR HOUSING PROPERTIES TRUST, SHALL LOOK ONLY TO THE ASSETS OF
SENIOR HOUSING PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION.
30
If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the Underwriters severally.
Very truly yours,
SENIOR HOUSING PROPERTIES TRUST
By:
-----------------------------------------
Name:
Title:
Accepted and agreed to
as of the date first above written:
UBS WARBURG LLC
DRESDNER KLEINWORT WASSERSTEIN
--GRANTCHESTER, INC.
FIRST UNION SECURITIES, INC.
BMO NESBITT BURNS CORP.
CIBC WORLD MARKETS CORP.
PNC CAPITAL MARKETS, INC.
SG COWEN SECURITIES CORPORATION
By: UBS WARBURG LLC
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
31
SCHEDULE A
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
UBS Warburg LLC............................................................................... 120,000,000
Dresdner Kleinwort Wasserstein
- --Grantchester, Inc........................................................................... 20,000,000
First Union Securities, Inc................................................................... 20,000,000
BMO Nesbitt Burns Corp........................................................................ 10,000,000
CIBC World Markets Corp....................................................................... 10,000,000
PNC Capital Markets, Inc...................................................................... 10,000,000
SG Cowen Securities Corporation............................................................... 10,000,000
----------------
Total............................................. $200,000,000
================
Schedule A-1
SCHEDULE B
SUBSIDIARY NAME
Five Star Quality Care Holding Co., Inc.
Five Star Quality Care Trust
Five Star Quality Care, Inc.
Five Star Quality Care-AZ, LLC
Five Star Quality Care-CA, Inc.
Five Star Quality Care-CA, LLC
Five Star Quality Care-Colorado, LLC
Five Star Quality Care-CT, LLC
Five Star Quality Care-GA, LLC
Five Star Quality Care-IA, Inc.
Five Star Quality Care-IA, LLC
Five Star Quality Care-KS, LLC
Five Star Quality Care-MI, Inc.
Five Star Quality Care-MI, LLC
Five Star Quality Care-MO, LLC
Five Star Quality Care-NE, Inc.
Five Star Quality Care-NE, LLC
Five Star Quality Care-WI, LLC
Five Star Quality Care-WY, LLC
FS Lafayette Tenant Trust
FS Lexington Tenant Trust
FS Tenant Pool I Trust
FS Tenant Pool III Trust
FS Tenant Pool IV Trust
FSQ Acquisition, Inc.
HRES1 Properties Trust
HRES2 Properties Trust
SHOPCO-SD, LLC
SNH Capital Trust Holdings
SNH Capital Trust I
SNH Capital Trust II
SNH Capital Trust III
SNH/CSL Properties Trust
SPTGEN Properties Trust
SPTIHS Properties Trust
SPTMISC Properties Trust
SPTMNR Properties Trust
SPTMRT Properties Trust
SPTSUN II Properties Trust
SPTSUN Properties Trust
Schedule B-1
SCHEDULE C
Five Star Quality Care Trust
FS Lafayette Tenant Trust
FS Lexington Tenant Trust
FS Tenant Pool I Trust
FS Tenant Pool III Trust
FS Tenant Pool IV Trust
Schedule C-1
SCHEDULE D
MATERIAL SUBSIDIARIES
HRES1 Properties Trust
SPTMRT Properties Trust
Schedule D-1
SCHEDULE E
MARYLAND SUBSIDIARIES
Five Star Quality Care, Inc.
HRES1 Properties Trust
HRES2 Properties Trust
SNH Capital Trust Holdings
SNH Capital Trust I
SNH Capital Trust II
SNH Capital Trust III
SNH/CSL 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 E-1