EXHIBIT 4.5
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of June 21, 2001 between SENIOR HOUSING PROPERTIES
TRUST, a Maryland real estate investment trust ("Senior Housing"), and SNH
CAPITAL TRUST I, a Maryland business trust (the "Trust").
WHEREAS, the Trust intends to issue its 10.125% Common Securities (the
"Common Securities") to, and purchase 10.125% Junior Subordinated Debentures
(the "Debentures") from, Senior Housing, and to issue and sell its 10.125% Trust
Preferred Securities (the "Trust Preferred Securities", and together with the
Common Securities, the "Trust Securities") to the purchasers (the
"Underwriters") named in Schedule A to the Underwriting Agreement, dated June
18, 2001 (the "Underwriting Agreement"), among the Representatives of the
several Underwriters, the Trust, SNH Capital Trust Holdings and Senior Housing
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust among SNH Capital
Trust Holdings, State Street Bank and Trust Company (the "Property Trustee") and
the Regular Trustees named therein relating to the Trust dated as of June 21,
2001, as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, Senior Housing will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred Securities, which purchase Senior Housing hereby agrees shall
benefit Senior Housing and which purchase Senior Housing acknowledges will be
made in reliance upon the execution and delivery of this Agreement, Senior
Housing and the Trust hereby agree as follows:
ARTICLE I
EXPENSES
1.1 Payment of Expenses. In connection with the offering, sale and
issuance of the Debentures to the Property Trustee and in connection with the
offering, sale and issuance of the Trust Securities by the Trust, Senior
Housing, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures and the Trust Securities, including commissions to
the Underwriters payable pursuant to the Underwriting Agreement and compensation
of the Trustee under the Indenture pertaining to the Debentures;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
fees and expenses of the Property Trustee, the costs and expenses relating to
the operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) pay all costs and expenses related to the enforcement by the
Property Trustee of the rights of the registered holders of the Trust Preferred
Securities;
(d) be primarily liable for any indemnification obligations
arising with respect to the Trust Agreement and the Underwriting Agreement; and
(e) pay any and all taxes and all liabilities, costs and expenses
with respect to such taxes of the Trust (but not including withholding taxes
imposed on holders of Trust Preferred Securities or Common Securities of the
Trust).
ARTICLE II
GUARANTEE BY SENIOR HOUSING
2.1 Guarantee by Senior Housing. Subject to the terms and conditions
hereof, Senior Housing hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Trust Preferred Securities the
amounts due such holders pursuant to the terms of the Trust Preferred
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
2.2 Terms of Agreement. This Agreement shall terminate and be of no
further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Trust Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Trust Preferred Securities or any
Beneficiary must restore payment of any sums paid under the Trust Preferred
Securities, under any Obligation, under the Trust Preferred Securities Guarantee
Agreement dated the date hereof by Senior Housing and State Street Bank and
Trust Company, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
2.3 Waiver of Notice. Senior Housing hereby waives notice of acceptance
of this Agreement and of any Obligation to which it applies or may apply, and
Senior Housing hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
2.4 No Impairment. The obligations, covenants, agreements and duties of
Senior Housing under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
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(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Senior Housing with respect to the happening of any of
the foregoing.
2.5 Enforcement. A Beneficiary may enforce this Agreement directly
against Senior Housing, and Senior Housing waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against Senior Housing.
2.6 Subrogation. Senior Housing shall be subrogated to all rights (if
any) of the Trust in respect of any amounts paid to the Beneficiaries by Senior
Housing under this Agreement; provided, however, that Senior Housing shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Agreement.
ARTICLE III
BINDING EFFECT
3.1 Binding Effect. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Senior Housing and shall inure to the benefit of the
Beneficiaries.
3.2 Amendment. So long as there remains any Beneficiary or any Trust
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred Securities.
3.3 Notices. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
by personal delivery, by facsimile transmission or by first-class mail,
addressed as follows (and if so given, shall be deemed given when so delivered,
upon receipt of confirmation if by facsimile, or three days after mailed if by
first-class mail):
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If to the Trust to:
SNH Capital Trust I
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
3.4 Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Maryland (without
regard to conflict of laws principles).
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THIS AGREEMENT is executed as of the day and year first above written.
SENIOR HOUSING PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
President
SNH CAPITAL TRUST I
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Trustee
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