**Exhibit 10.4**

 

**INDEMNIFICATION AGREEMENT**

 

THIS INDEMNIFICATION AGREEMENT (this“Agreement”) is made and entered March 10, 2004 (the “Effective Date”), byand between Senior Housing Properties Trust, a Maryland real estate investmenttrust (the “Company”), and David J. Hegarty (“Indemnitee”).

 

WHEREAS Indemnitee currently serves as anofficer of the Company and may, in connection therewith, be subjected toclaims, suits or proceedings arising from such service; and

 

WHEREAS, as an inducement to Indemnitee to continueto serve as such officer, theCompany has agreed to indemnify and to advance expenses and costs incurred byIndemnitee in connection with any such claims, suits or proceedings, to thefullest extent permitted by law as hereinafter provided; and

 

NOW, THEREFORE, in consideration of thepremises and the covenants contained herein, the Company and Indemnitee dohereby covenant and agree as follows:

 

Section 1.               Definitions.  For purposes of this Agreement:

 

(a)           “Change in Control” means a change incontrol of the Company occurring after the Effective Date of a nature thatwould be required to be reported in response to Item 6(e) of Schedule 14Aof Regulation 14A (or in response to any similar item on any similarschedule or form) promulgated under the Securities Exchange Act of 1934,as amended (the “Act”), whether or not the Company is then subject to suchreporting requirement; provided, however, that, without limitation, such aChange in Control shall be deemed to have occurred if after the Effective Date(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act)is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act),directly or indirectly, of securities of the Company representing 10% or more of the combined voting powerin the election of trustees of the Company’s then outstanding securitieswithout the prior approval of at least two-thirds of the members of the Boardof Trustees in office immediately prior to such person attaining suchpercentage interest; (ii) there occurs a proxy contest, or the Company is aparty to a merger, consolidation, sale of assets, plan of liquidation or otherreorganization not approved by at least two-thirds of the members of the Boardof Trustees then in office, as a consequence of which members of the Board ofTrustees in office immediately prior to such transaction or event constituteless than a majority of the Board of Trustees thereafter; or (iii) during anyperiod of two consecutive years, other than as a result of an event describedin clause (a)(ii) of this Section 1, individuals who at thebeginning of such period constituted the Board of Trustees (including for thispurpose any new trustee whose election or nomination for election by theCompany’s shareholders was approved by a vote of at least two-thirds of thetrustees then still in office who were trustees at the beginning of suchperiod) cease for any reason to constitute at least a majority of the Board ofTrustees.

 

(b)           “Corporate Status” means the statusof a person who is or was a director, trustee, officer or agent of the Company.

 

(c)           “Disinterested Trustee” means atrustee of the Company who is not and was not a party to the Proceeding inrespect of which indemnification is sought by Indemnitee.

 

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### **(d)           “Expenses” means all expenses,including, but not limited to, all reasonable attorneys’ fees, retainers, courtcosts, transcript costs, fees of experts, witness fees, travel expenses,duplicating costs, printing and binding costs, telephone charges, postage, deliveryservice fees, and all other disbursements or expenses of the types customarilyincurred in connection with prosecuting, defending, preparing to prosecute ordefend, investigating, or being or preparing to be a witness in a Proceeding.**

 

### **(e)           “Independent Counsel” means a lawfirm, or a member of a law firm, that is retained by Indemnitee and is notserving as counsel to the Company.**

### ** **

### **(f)            “Proceeding” means any threatened,pending or completed action, suit, arbitration, alternate dispute resolutionmechanism, investigation, administrative hearing or any other proceeding,whether civil, criminal, administrative or investigative (including on appeal),except one initiated by an Indemnitee pursuant to Section 9.**

### ** **

## ***Section 2.               Indemnification- General.  The Company shallindemnify, and advance Expenses to, Indemnitee (a) as provided in thisAgreement and (b) otherwise to the fullest extent permitted by Maryland law ineffect on the date hereof and as amended from time to time; provided, however,that no change in Maryland law shall have the effect of reducing the benefitsavailable to Indemnitee hereunder based on Maryland law as in effect on thedate hereof.  The rights of Indemniteeprovided in this Section 2 shall include, without limitation, therights set forth in the other sections of this Agreement, including anyadditional indemnification permitted by Section 2-418(g) of the MarylandGeneral Corporation Law (“MGCL”), as applicable to a Maryland real estateinvestment trust by virtue of Section 8-301(15) of the Maryland REIT Law.***

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## ***Section 3.               ProceedingsOther Than Proceedings by or in the Right of the Company.  Indemnitee shall be entitled to the rightsof indemnification provided in this Section 3 if, by reason of hisCorporate Status, he is, or is threatened to be, made a party to anythreatened, pending, or completed Proceeding, other than a Proceeding by or inthe right of the Company.  Pursuant tothis Section 3, Indemnitee shall be indemnified against alljudgments, penalties, fines and amounts paid in settlement and all Expensesincurred by him or on his behalf in connection with a Proceeding by reason ofIndemnitee’s Corporate Status unless it is established that (i) the act oromission of Indemnitee was material to the matter giving rise to the Proceedingand (a) was committed in bad faith or (b) was the result of active anddeliberate dishonesty, (ii) Indemnitee actually received an improper personalbenefit in money, property or services, or (iii) in the case of any criminalProceeding, Indemnitee had reasonable cause to believe that his conduct wasunlawful.***

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## ***Section 4.               Proceedingsby or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification providedin this Section 4 if, by reason of his Corporate Status, he is, oris threatened to be, made a party to any threatened, pending or completedProceeding brought by or in the right of the Company to procure a judgment inits favor.  Pursuant to this Section 4,Indemnitee shall be indemnified against all amounts paid in settlement and allExpenses incurred by him or on his behalf in connection with such Proceedingunless it is established that (i) the act or omission of Indemnitee wasmaterial to the matter giving rise to such a Proceeding and (a) was committedin bad faith or (b) was the result of active and***

 

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deliberate dishonesty or (ii)Indemnitee actually received an improper personal benefit in money, property orservices.

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## ***Section 5.               Indemnificationfor Expenses of a Party Who is Partly Successful.  Without limitation on Section 3 and Section 4,if Indemnitee is not wholly successful in any Proceeding covered by thisAgreement, but is successful, on the merits or otherwise, as to one or more butless than all claims, issues or matters in such Proceeding, the Company shallindemnify Indemnitee under this Section 5 for all Expenses incurredby him or on his behalf in connection with each successfully resolved claim,issue or matter, allocated on a reasonable and proportionate basis.  For purposes of this Section andwithout limitation, the termination of any claim, issue or matter in such aProceeding by dismissal, with or without prejudice, shall be deemed to be asuccessful result as to such claim, issue or matter.***

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## ***Section 6.               Advanceof Expenses.  The Company shalladvance all Expenses incurred by or on behalf of Indemnitee in connection withany Proceeding to which Indemnitee is, or is threatened to be, made a party ora witness, within ten days after the receipt by the Company of a statement orstatements from Indemnitee requesting such advance or advances from time totime, whether prior to or after final disposition of such Proceeding.  Such statement or statements shall reasonablyevidence the Expenses incurred by Indemnitee and shall include or be precededor accompanied by a written affirmation by Indemnitee of Indemnitee’s goodfaith belief that the standard of conduct necessary for indemnification by theCompany as authorized by law and by this Agreement has been met and a writtenundertaking by or on behalf of Indemnitee, in substantially the form attachedhereto as Exhibit A or in such form as may be required under applicablelaw as in effect at the time of the execution thereof, to reimburse the portionof any Expenses advanced to Indemnitee relating to claims, issues or matters inthe Proceeding as to which it shall ultimately be established that the standardof conduct has not been met and which have not been successfully resolved asdescribed in Section 5.  Tothe extent that Expenses advanced to Indemnitee do not relate to a specificclaim, issue or matter in the Proceeding, such Expenses shall be allocated on areasonable and proportionate basis.  Theundertaking required by this Section 6 shall be an unlimitedgeneral obligation by or on behalf of Indemnitee and shall be accepted withoutreference to Indemnitee’s financial ability to repay such advanced Expenses andwithout any requirement to post security therefor.***

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## ***Section 7.               Procedurefor Determination of Entitlement to Indemnification.***

## *** ***

### **(a)           To obtain indemnification under thisAgreement, Indemnitee shall submit to the Company a written request, includingsuch documentation and information as is reasonably available to Indemnitee andis reasonably necessary to determine whether and to what extent Indemnitee isentitled to indemnification.  TheSecretary of the Company shall, promptly upon receipt of such a request forindemnification, advise the Board of Trustees in writing that Indemnitee hasrequested indemnification.**

### ** **

### **(b)           Upon written request by Indemniteefor indemnification pursuant to the first sentence of Section 7(a)hereof, a determination, if required by applicable law, with respect toIndemnitee’s entitlement thereto shall promptly be made in the specific case:(i) if a Change in Control shall have occurred, by Independent Counsel in awritten opinion to the Board of**

 

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### **Trustees,a copy of which shall be delivered to Indemnitee; or (ii) if a Change ofControl shall not have occurred or if after a Change of Control Indemniteeshall so request, (A) by the Board of Trustees (or a duly authorized committeethereof) by a majority vote of a quorum consisting of Disinterested Trustees(as herein defined), or (B) if a quorum of the Board of Trustees consisting ofDisinterested Trustees is not obtainable or, even if obtainable, such quorum ofDisinterested Trustees so directs, by Independent Counsel in a written opinionto the Board of Trustees, a copy of which shall be delivered to Indemnitee, or(C) if so directed by a majority of the members of the Board of Trustees, bythe shareholders of the Company; and, if it is so determined that Indemnitee isentitled to indemnification, payment to Indemnitee shall be made within tendays after such determination. Indemnitee shall cooperate with the person, persons or entity makingsuch determination with respect to Indemnitee’s entitlement to indemnification,including providing to such person, persons or entity upon reasonable advancerequest any documentation or information which is not privileged or otherwiseprotected from disclosure and which is reasonably available to Indemnitee andreasonably necessary to such determination. Any Expenses incurred by Indemnitee in so cooperating with the person,persons or entity making such determination shall be borne by the Company(irrespective of the determination as to Indemnitee’s entitlement toindemnification) and the Company shall indemnify and hold Indemnitee harmlesstherefrom.**

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## ***Section 8.               Presumptionsand Effect of Certain Proceedings.***

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### **(a)           In making a determination withrespect to entitlement to indemnification hereunder, the person or persons orentity making such determination shall presume that Indemnitee is entitled toindemnification under this Agreement if Indemnitee has submitted a request forindemnification in accordance with Section 7(a) of this Agreement,and the Company shall have the burden of proof to overcome that presumption inconnection with the making of any determination contrary to that presumption.**

### ** **

### **(b)           The termination of any Proceeding byjudgment, order, settlement, conviction, a plea of nolocontendereor its equivalent, or an entry of an order of probation prior to judgment, doesnot create a presumption that Indemnitee did not meet the requisite standard ofconduct described herein for indemnification.**

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## ***Section 9.               Remediesof Indemnitee.***

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### **(a)           If (i) a determination is madepursuant to Section 7 that Indemnitee is not entitled to indemnificationunder this Agreement, (ii) advance of Expenses is not timely made pursuant to Section 6,(iii) no determination of entitlement to indemnification shall have been madepursuant to Section 7(b) within 30 days after receipt by theCompany of the request for indemnification, (iv) payment of indemnification isnot made pursuant to Section 5 within ten days after receipt by theCompany of a written request therefor, or (v) payment of indemnification is notmade within ten days after a determination has been made that Indemnitee isentitled to indemnification, Indemnitee shall be entitled to an adjudication inan appropriate court of the State of Maryland, or in any other court ofcompetent jurisdiction, of his entitlement to such indemnification or advance ofExpenses.  Alternatively, Indemnitee, athis option, may seek an award in arbitration to be conducted by a singlearbitrator pursuant to the commercial**

 

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### **ArbitrationRules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or anaward in arbitration within 180 days following the date on which Indemniteefirst has the right to commence such proceeding pursuant to this Section 9(a);provided, however, that the foregoing clause shall not apply inrespect of a proceeding brought by Indemnitee to enforce his rights under Section 5.**

### ** **

### **(b)           In any judicial proceeding orarbitration commenced pursuant to this Section 9, the Company shallhave the burden of proving that Indemnitee is not entitled to indemnificationor advance of Expenses, as the case may be.**

### ** **

### **(c)           If a determination shall have beenmade pursuant to Section 7(b) that Indemnitee is entitled toindemnification, the Company shall be bound by such determination in anyjudicial proceeding or arbitration commenced pursuant to this Section 9,absent a misstatement by Indemnitee of a material fact, or an omission of amaterial fact necessary to make Indemnitee’s statement not materiallymisleading, in connection with the request for indemnification.**

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### **(d)           In the event that Indemnitee,pursuant to this Section 9, seeks a judicial adjudication of or anaward in arbitration to enforce his rights under, or to recover damages forbreach of, this Agreement, Indemnitee shall be entitled to recover from theCompany, and shall be indemnified by the Company for, any and all Expensesincurred by him in such judicial adjudication or arbitration.  If it shall be determined in such judicialadjudication or arbitration that Indemnitee is entitled to receive part but notall of the indemnification or advance of Expenses sought, the Expenses incurredby Indemnitee in connection with such judicial adjudication or arbitrationshall be appropriately prorated.**

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## ***Section 10.             Defenseof the Underlying Proceeding.***

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### **(a)           Indemnitee shall notify the Companypromptly upon being served with or receiving any summons, citation, subpoena,complaint, indictment, information, notice, request or other document relatingto any Proceeding which may result in the right to indemnification or theadvance of Expenses hereunder; provided, however, that thefailure to give any such notice shall not disqualify Indemnitee from the right,or otherwise affect in any manner any right of Indemnitee, to indemnificationor the advance of Expenses under this Agreement unless the Company’s ability todefend in such Proceeding or to obtain proceeds under any insurance policy ismaterially and adversely prejudiced thereby, and then only to the extent theCompany is thereby actually so prejudiced.**

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### **(b)           Subject to the provisions of the lastsentence of this Section 10(b) and of Section 10(c)below, the Company shall have the right to defend Indemnitee in any Proceedingwhich may give rise to indemnification hereunder; provided, however,that the Company shall notify Indemnitee of any such decision to defend within15 calendar days following receipt of notice of any such Proceeding under Section 10(a)above.  The Company shall not, withoutthe prior written consent of Indemnitee, which shall not be unreasonablywithheld or delayed, consent to the entry of any judgment against Indemnitee orenter into any settlement or compromise which (i) includes an admission offault of Indemnitee or (ii) does not include, as an unconditional term thereof,the full release of Indemnitee from all liability in respect of suchProceeding, which**

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### **releaseshall be in form and substance reasonably satisfactory to Indemnitee.  This Section 10(b) shall notapply to a Proceeding brought by Indemnitee under Section 9 aboveor Section 14.**

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### **(c)           Notwithstanding the provisions of Section 10(b),if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’sCorporate Status, (i) Indemnitee reasonably concludes, based upon an opinion ofcounsel approved by the Company, which approval shall not be unreasonablywithheld, that he may have separate defenses or counterclaims to assert withrespect to any issue which may not be consistent with other defendants in suchProceeding, (ii) Indemnitee reasonably concludes, based upon an opinion ofcounsel approved by the Company, which approval shall not be unreasonablywithheld, that an actual or apparent conflict of interest or potential conflictof interest exists between Indemnitee and the Company, or (iii) the Companyfails to assume the defense of such Proceeding in a timely manner, Indemniteeshall be entitled to be represented by separate legal counsel of Indemnitee’schoice, subject to the prior approval of the Company, which shall not beunreasonably withheld, at the expense of the Company.  In addition, if the Company fails to comply with any of itsobligations under this Agreement or in the event that the Company or any otherperson takes any action to declare this Agreement void or unenforceable, orinstitutes any Proceeding to deny or to recover from Indemnitee the benefitsintended to be provided to Indemnitee hereunder, Indemnitee shall have theright to retain counsel of Indemnitee’s choice, subject to the prior approvalof the Company, which shall not be unreasonably withheld, at the expense of theCompany (subject to Section 9(d)), to represent Indemnitee inconnection with any such matter.**

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## ***Section 11.             Non-Exclusivity;Survival of Rights.***

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### **(a)           The rights of indemnification andadvance of Expenses as provided by this Agreement shall not be deemed exclusiveof any other rights to which Indemnitee may at any time be entitled underapplicable law, the Declaration of Trust or Bylaws of the Company, anyagreement or a resolution of the shareholders entitled to vote generally in theelection of trustees or of the Board of Trustees, or otherwise.  No amendment, alteration or repeal of thisAgreement or of any provision hereof shall limit or restrict any right ofIndemnitee under this Agreement in respect of any action taken or omitted bysuch Indemnitee in his Corporate Status prior to such amendment, alteration orrepeal.**

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### **(b)           In the event of any payment underthis Agreement, the Company shall be subrogated to the extent of such paymentto all of the rights of recovery of Indemnitee, who shall execute all papersrequired and take all action necessary to secure such rights, includingexecution of such documents as are necessary to enable the Company to bringsuit to enforce such rights.**

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### **(c)           The Company shall not be liable underthis Agreement to make any payment of amounts otherwise indemnifiable hereunderif and to the extent that Indemnitee has otherwise actually received suchpayment under any insurance policy, contract, agreement or otherwise.**

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## ***Section 12.             Durationof Agreement; Binding Effect.***

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### **(a)           This Agreement shall continue untiland terminate ten years after the date that Indemnitee shall have ceased toserve as a director, trustee, officer, employee, or agent of the**

 

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### **Companyor of any other corporation, partnership, joint venture, trust, employeebenefit plan or other enterprise which Indemnitee served at the request of theCompany; provided, however, that the rights of Indemniteehereunder shall continue until the final termination of any Proceeding thenpending in respect of which Indemnitee is granted rights of indemnification oradvance of Expenses hereunder and of any proceeding commenced by Indemniteepursuant to Section 9 relating thereto.**

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### **(b)           The indemnification and advance ofExpenses provided by, or granted pursuant to, this Agreement shall be bindingupon and be enforceable by the parties hereto and their respective successorsand assigns (including any direct or indirect successor by purchase, merger,consolidation or otherwise to all or substantially all of the business orassets of the Company), shall continue as to an Indemnitee who has ceased to bea director, trustee, officer, employee or agent of the Company or of any othercorporation, partnership, joint venture, trust, employee benefit plan or otherenterprise which such person is or was serving at the written request of theCompany, and shall inure to the benefit of Indemnitee and his or her spouse,assigns, heirs, devisees, executors and administrators and other legalrepresentatives.**

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### **(c)           The Company shall require and causeany successor (whether direct or indirect by purchase, merger, consolidation orotherwise) to all, substantially all or a substantial part, of the businessand/or assets of the Company, by written agreement in form and substancesatisfactory to Indemnitee, expressly to assume and agree to perform thisAgreement in the same manner and to the same extent that the Company would berequired to perform if no such succession had taken place.**

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## ***Section 13.             Severability.  If any provision or provisions of thisAgreement shall be held to be invalid, illegal or unenforceable for any reasonwhatsoever: (a) the validity, legality and enforceability of the remainingprovisions of this Agreement (including, without limitation, each portion ofany section of this Agreement containing any such provision held to beinvalid, illegal or unenforceable that is not itself invalid, illegal orunenforceable) shall not in any way be affected or impaired thereby; and (b) tothe fullest extent possible, the provisions of this Agreement (including,without limitation, each portion of any section of this Agreementcontaining any such provision held to be invalid, illegal or unenforceable,that is not itself invalid, illegal or unenforceable) shall be construed so asto give effect to the intent manifested thereby.***

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## ***Section 14.             Limitationand Exception to Right of Indemnification or Advance of Expenses.  Notwithstanding any other provision of thisAgreement, (a) any indemnification or advance of Expenses to which Indemniteeis otherwise entitled under the terms of this Agreement shall be made only tothe extent such indemnification or advance of Expenses does not conflict withapplicable Maryland law and (b) Indemnitee shall not be entitled toindemnification or advance of Expenses under this Agreement with respect to anyProceeding brought by Indemnitee, unless (i) the Proceeding is brought toenforce indemnification under this Agreement or otherwise or (ii) the Company’sBylaws, as amended, the Declaration of Trust, a resolution of the shareholdersentitled to vote generally in the election of trustees or of the Board ofTrustees or an agreement approved by the Board of Trustees to which the Companyis a party expressly provide otherwise.***

 

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## ***Section 15.             Counterparts.  This Agreement may be executed in one ormore counterparts, each of which shall for all purposes be deemed to be anoriginal but all of which together shall constitute one and the sameAgreement.  One such counterpart signedby the party against whom enforceability is sought shall be sufficient toevidence the existence of this Agreement.***

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## ***Section 16.             Headings.  The headings of the paragraphs of thisAgreement are inserted for convenience only and shall not be deemed toconstitute part of this Agreement or to affect the construction thereof.***

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## ***Section 17.             Modificationand Waiver.  No supplement,modification or amendment of this Agreement shall be binding unless executed inwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed orshall constitute a waiver of any other provisions hereof (whether or notsimilar) nor shall such waiver constitute a continuing waiver.***

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## ***Section 18.             Notices.  Any notice, report or other communicationrequired or permitted to be given hereunder shall be in writing unless someother method of giving such notice, report or other communication is acceptedby the party to whom it is given, and shall be given by being delivered at thefollowing addresses to the parties hereto:***

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### **(a)           If to Indemnitee, to:  The address set forth on the signature pagehereto.**

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### **(b)           If to the Company to:**

### ** **

Senior Housing Properties Trust

400 Centre StreetNewton, Massachusetts 02458Attn:  Secretary

 

or to such other address as may have been furnished to Indemnitee bythe Company or to the Company by Indemnitee, as the case may be.

 

## ***Section 19.             GoverningLaw.  The parties agree that thisAgreement shall be governed by, and construed and enforced in accordance with,the laws of the State of Maryland, without regard to its conflicts of lawsrules.***

 

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto haveexecuted this Agreement on the day and year first above written.

 

 
| ATTEST:                 | SENIOR HOUSING PROPERTIES TRUST                     |
|-------------------------|-----------------------------------------------------|
|                    |                                                |
|                    |                                                |
| /s/ Jennifer B. Clark   |                                                | By: | /s/ John R. Hoadley | (SEAL) |
|                    | Name: John R. Hoadley                               |
|                    | Title:  Treasurer and Chief  Financial Officer |
|                    |                                                |
|                    |                                                |
| WITNESS:                | INDEMNITEE                                          |
|                    |                                                |
|                    |                                                |
| /s/ Judith A. Stapleton |                                                | /s/ David J. Hegarty |   |
|                    | Name:  David J. Hegarty                        |
|                    | Address: [address omitted]                          |
|                         |                                                     |  |  |  |  |

 

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**EXHIBIT A**

 

FORM OF UNDERTAKING TO REPAYEXPENSES ADVANCED

 

The Board of Trustees of Senior Housing Properties Trust

 

Re:  Undertaking to RepayExpenses Advanced

 

Ladies and Gentlemen:

 

This undertaking is being provided pursuant to that certain IndemnificationAgreement dated                   ,2004, by and between Senior Housing Properties Trust (the “Company”) and theundersigned Indemnitee (the “Indemnification Agreement”), pursuant to which Iam entitled to advance of expenses in connection with **[Description of Proceeding]**(the “Proceeding”).

 

Terms used herein and not otherwise defined shall have the meaningsspecified in the Indemnification Agreement.

 

I am subject to the Proceeding by reason of my Corporate Status or byreason of alleged actions or omissions by me in such capacity.  I hereby affirm that at all times, insofaras I was involved as **[a trustee]****[an officer]** of the Company,in any of the facts or events giving rise to the Proceeding, I (1) acted ingood faith and honestly, (2) did not receive any improper personal benefit inmoney, property or services and (3) in the case of any criminal proceeding, hadno reasonable cause to believe that any act or omission by me was unlawful.

 

In consideration of the advance of expenses by the Company forreasonable attorney’s fees and related expenses incurred by me in connectionwith the Proceeding (the “Advanced Expenses”), I hereby agree that if, inconnection with the Proceeding, it is established that (1) an act or omissionby me was material to the matter giving rise to the Proceeding and (a) wascommitted in bad faith or (b) was the result of active and deliberatedishonesty or (2) I actually received an improper personal benefit in money,property or services or (3) in the case of any criminal proceeding, I hadreasonable cause to believe that the act or omission was unlawful, then I shallpromptly reimburse the portion of the Advanced Expenses relating to the claims,issues or matters in the Proceeding as to which the foregoing findings have beenestablished and which have not been successfully resolved as described in Section 5of the Indemnification Agreement.  Tothe extent that Advanced Expenses do not relate to a specific claim, issue ormatter in the Proceeding, I agree that such Expenses shall be allocated on areasonable and proportionate basis.

 

IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking onthis         day of                                      ,200     .

 

 

WITNESS:

 
|   |   |   | (SEAL) |
|--------|--------|--------|--------|

 

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**Schedule to Exhibit 10.4**

 

The following individuals are parties toIndemnification Agreements with the Company which are substantially identicalin all material respects to the representative Indemnification Agreement filedherewith and are dated as of the respective dates listed below.  The other Indemnification Agreements areomitted pursuant to Instruction 2 to Item 601 of Regulation S-K.

 
| **Name of Signatory**    |   | **Date**            |
|--------------------------|--------|---------------------|
| David J. Hegarty         |   | March 10, 2004      |
| John R. Hoadley          |   | March 10, 2004 |
| Frank J. Bailey          |   | March 10, 2004 |
| John L. Harrington       |   | March 10, 2004 |
| Gerard M. Martin         |   | March 10, 2004 |
| Barry M. Portnoy         |   | March 10, 2004 |
| Frederick N. Zeytoonjian |   | March 10, 2004 |
| William J. Sheehan       |   | May 7, 2004         |

 

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