Exhibit 10.1


 


AMENDED AND RESTATED


SHAREHOLDERS AGREEMENT



by and among



AFFILIATES INSURANCE COMPANY,



FIVE STAR QUALITY CARE, INC.,



HOSPITALITY PROPERTIES TRUST,



HRPT PROPERTIES TRUST,



SENIOR HOUSING PROPERTIES TRUST,



TRAVELCENTERS OF AMERICA LLC



REIT MANAGEMENT & RESEARCH LLC



and



GOVERNMENT PROPERTIES INCOME TRUST



December 16, 2009


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  INVESTMENT IN THE COMPANY; FORMATION AND LICENSING
  EXPENSES

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Share Issuances to Original Shareholders

  	
  2

  
	
  1.2

  	
  Future Share Issuances

  	
  2

  
	
  1.3

  	
  Formation and Licensing Expenses

  	
  2

  
	
  1.4

  	
  Share Issuance to GOV

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  BOARD COMPOSITION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Board Composition

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  TRANSFER OF SHARES;

  	
   

  
	
  PREEMPTIVE RIGHTS; CALL RIGHTS

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Transfer of Shares; No Pledging of Shares

  	
  4

  
	
  3.2

  	
  Preemptive Rights

  	
  4

  
	
  3.3

  	
  Change of Control Call Option

  	
  7

  
	
  3.4

  	
  Permitted New Issuance of Shares

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  SPECIAL SHAREHOLDER APPROVAL REQUIREMENTS.

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Special Shareholder Approval Requirements

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  OTHER COVENANTS AND AGREEMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Organizational Documents

  	
  11

  
	
  5.2

  	
  Reports and Information Access

  	
  11

  
	
  5.3

  	
  Compliance with Laws

  	
  11

  
	
  5.4

  	
  Cooperation; Further Assurances

  	
  11

  
	
  5.5

  	
  Confidentiality

  	
  12

  
	
  5.6

  	
  Required Regulatory Approvals

  	
  12

  
	
  5.7

  	
  REIT Matters

  	
  13

  



 

















 


	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  The Company

  	
  13

  
	
  6.2

  	
  The Shareholders

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Termination

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Notices

  	
  16

  
	
  8.2

  	
  Successors and Assigns; Third Party Beneficiaries

  	
  18

  
	
  8.3

  	
  Amendment and Waiver

  	
  18

  
	
  8.4

  	
  Counterparts

  	
  18

  
	
  8.5

  	
  Headings

  	
  19

  
	
  8.6

  	
  Governing Law

  	
  19

  
	
  8.7

  	
  Dispute Resolution

  	
  19

  
	
  8.8

  	
  Interpretation and Construction

  	
  21

  
	
  8.9

  	
  Severability

  	
  21

  
	
  8.10

  	
  Entire Agreement

  	
  21

  
	
  8.11

  	
  Non-liability
  of Trustees and Directors

  	
  22

  



 

















 


AMENDED
AND RESTATED


SHAREHOLDERS
AGREEMENT


 


AFFILIATES
INSURANCE COMPANY


 


This Amended and Restated Shareholders Agreement (this “Agreement”),
dated December 16, 2009, by and among Affiliates Insurance Company, an
Indiana insurance company (the “Company”), Five Star Quality Care, Inc.,
a Maryland corporation (“FVE”), Hospitality Properties Trust, a Maryland
real estate investment trust (“HPT”), HRPT Properties Trust, a Maryland
real estate investment trust (“HRP”), Senior Housing Properties Trust, a
Maryland real estate investment trust (“SNH”), TravelCenters of America
LLC, a Delaware limited liability company (“TA”), Reit Management &
Research LLC, a Delaware limited liability company (“RMR”, and together
with FVE, HPT, HRP, SNH and TA, the “Original Shareholders”), and Government Properties Income Trust, a
Maryland real estate investment trust (“GOV”, and together with the
Original Shareholders, the “Shareholders”), amends and restates the
Shareholders Agreement (the “Original Shareholders Agreement”), dated February 27,
2009 (the “Original Date”), by and among the Company and the Original
Shareholders, effective as of the date first set forth above.


 


RECITALS


 


WHEREAS, the Company has been formed and licensed as an insurance
company domiciled in the State of Indiana;


 


WHEREAS, the Original Shareholders previously made the capital
contributions to the Company contemplated by Section 1.1 of this
Agreement;


 


WHEREAS, in connection with the purchase by GOV from the Company of
20,000 shares of common stock, par value of $10.00 per share, of the Company
(the “Shares”) pursuant to a Subscription Agreement (the “GOV
Subscription Agreement”) to be entered into by the Company and GOV,
concurrently with the execution and delivery of this Agreement, the Company,
the Original Shareholders and GOV desire to enter into this Agreement to, among
other things, add GOV as a Shareholder hereunder; and


 


WHEREAS, the Shareholders and the Company desire to enter into this
Agreement in order to set forth certain agreements and understandings relating
to the business and governance of the Company, the Shares held by the
Shareholders and certain other matters.


 

















 


NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:


 


ARTICLE
I



INVESTMENT IN THE COMPANY; FORMATION AND LICENSING EXPENSES


 


1.1           Share Issuances to Original
Shareholders.


 


(a)        On or about
the Original Date, the Company issued and sold to each Original Shareholder,
and each Original Shareholder purchased from the Company, 100 Shares at a
purchase price of $250.00 per Share.


 


(b)        Within five
business days after the Company notified the Original Shareholders that the
Department of Insurance of the State of Indiana had notified the Company that
it intended to commence its financial review of the Company, the Company issued
and sold to each Original Shareholder, and each Original Shareholder purchased
from the Company, an additional 19,900 Shares at a purchase price of $250.00
per Share.


 


1.2           Future Share Issuances.  No Shareholder shall be obligated to purchase
additional Shares or any other securities of the Company and any future
proposed issuance and sale of Shares or any other securities of the Company
shall be subject to Section 3.2, except to the extent otherwise provided
under this Agreement; provided, however, that the parties hereto acknowledge
that the Company may need to seek additional capital in the future and that it
is the intention of the Shareholders that they each may, but shall not be
obligated to, contribute to the Company up to an additional $5 million of
capital during the period between the second and fifth anniversaries of the
Original Date.


 


1.3           Formation and Licensing
Expenses.  The Company
shall pay for all costs, fees and expenses in connection with the formation and
licensing of the Company as an Indiana insurance company.  The Original Shareholders shall reimburse the
Company for such amounts paid by the Company prior to the date hereof in equal
proportion.  The Shareholders shall
reimburse the Company for such amounts paid by the Company on or after the date
hereof in equal proportion.


 


1.4           Share Issuance to GOV.  As described in the recitals, concurrently
with the execution and delivery of this Agreement, GOV is purchasing 20,000
Shares from the Company pursuant to the GOV Subscription Agreement and, upon
such purchase, GOV shall then become a Shareholder effective as of such
purchase.


 


2

















 


ARTICLE
II



BOARD COMPOSITION


 


2.1           Board Composition.


 


(a)        For as long
as the Shareholders collectively own a majority of the issued and outstanding
Shares, the board of directors of the Company (the “Board”) shall
consist of not less than five nor more than fifteen members, with the actual
number determined in accordance with the Bylaws of the Company, as in effect
from time to time, and subject in all instances to this Section 2.1.  As of the date of this Agreement, the Board
shall initially consist of thirteen members. 
For so long as required by applicable Indiana law, at least one member
of the Board shall be an Indiana resident. 
Except as otherwise provided in Section 2.1(c), no Shareholder
having a right to designate any director pursuant to this Article II shall
be required to designate an Indiana resident as a director pursuant to such
right; provided, however, that this sentence shall in no way limit the
application of the immediately preceding sentence.


 


(b)        For so long
as a Shareholder (other than RMR) owns not less than 10%  of
the  issued and outstanding Shares, such
Shareholder shall have the right to designate two directors for election to the
Board.


 


(c)        For so long
as RMR owns not less than 10%  of the  issued and outstanding Shares, RMR shall have the right to
designate three directors for election to the Board.  For so long as RMR has the right to designate
directors pursuant to the immediately preceding sentence, Indiana law requires
the Board to include an Indiana resident as a director of the Company and no
other Shareholder designates an Indiana resident as a director of the Company,
RMR shall designate at least one Indiana resident to be a director.


 


(d)        Each
Shareholder will vote, execute and deliver written consents and take all other
necessary action (including, if necessary, causing the Company to call a special
meeting of shareholders of the Company) in favor of the election of each
director designated by a Shareholder in accordance with this Article II
and otherwise to ensure that the composition of the Board is at all times as
set forth in this Article II.  Each
Shareholder agrees that it will not vote any of its Shares in favor of removal
of any director designated by another Shareholder unless such other Shareholder
shall have consented to such removal in writing.  Each Shareholder agrees to cause to be
called, if necessary, a special meeting of shareholders of the Company and to
vote all the Shares owned by such Shareholder for, or to take all actions in
lieu of any such meeting necessary to cause, the removal of any director
designated by such Shareholder if the Shareholder entitled to designate such
director requests in writing, signed by such Shareholder, such director’s
removal for any reason or no reason.


 


(e)        If, as a
result of death, disability, retirement, resignation, removal or otherwise,
there shall exist or occur any vacancy with respect to any director previously
designated by a Shareholder in accordance with such Shareholder’s right under
this Article II to so designate such director, such Shareholder shall have
the right to designate a replacement director. 
Upon such designation, the Shareholders shall promptly take all action
necessary to ensure the election of such replacement director to fill the
unexpired term of the director whom 


 


3

















 


such new director is replacing, including, if necessary,
calling a special meeting of shareholders of the Company and voting their
Shares, or executing any written consent in lieu thereof, in favor of the
election of such director.


 


ARTICLE
III



TRANSFER OF SHARES; 

PREEMPTIVE RIGHTS; CALL RIGHTS


 


3.1           Transfer of Shares; No
Pledging of Shares.


 


(a)        The
Shareholders may not, directly or indirectly, transfer any Shares, except that
a Shareholder may transfer Shares owned by it to a wholly owned subsidiary of
such Shareholder, to another Shareholder or to a wholly owned subsidiary of
another Shareholder.  Any purported
transfer of Shares in contravention of this Section 3.1 shall be null and
void and of no force or effect.


 


(b)        The
Shareholders may not pledge their Shares (other than pledges arising from the
operation of law and not as a result of the Shareholder’s express granting of a
pledge); provided, however, that any pledge or other lien, charge or
encumbrance which may arise by application of the terms of any agreement,
contract, license, permit or instrument existing, for any of the Original
Shareholders, on the Original Date, and for GOV, on the date hereof (an “Existing
Pledge”), on a Shareholder’s Shares shall not be a violation of this Section 3.1(b);
and provided further, however, any transfer which results from exercise of
rights under a permitted lien, charge or encumbrance shall be subject to the
call rights of the Company and the other Shareholders set forth in Section 3.3
to the fullest extent permitted by applicable law and existing contracts as if
such a transfer constitutes a “Change of Control”.  Any Shareholder whose Shares would be subject
to an Existing Pledge shall use best efforts to cause the pledgee under an
Existing Pledge, prior to any exercise by the pledgee of its rights on the
Shareholder’s Shares, to take all actions under applicable law which are
required to be taken prior to any such exercise, including obtaining any
necessary approvals from the Indiana Department of Insurance and Indiana
Insurance Commissioner.


 


3.2           Preemptive Rights.


 


(a)        If, at any
time after the date hereof, the Company wishes to issue any capital stock of
the Company or any other securities convertible into or exchangeable or
exercisable for capital stock of the Company (collectively, “New Securities”)
to any person or entity (the “Subject Purchaser”), then the Company
shall first offer the Appropriate Percentage (as defined herein) of the New
Securities (the “Allocated Shares”) to each Shareholder (each, a “Preemptive
Rightholder” and collectively, the “Preemptive Rightholders”) by
sending written notice (the “New Issuance Notice”) to each of the
Preemptive Rightholders, which New Issuance Notice shall state the terms of
such proposed issuance, including the number of New Securities proposed to be
issued and the proposed purchase price per security of the New Securities (the “Proposed
Price”).  Upon delivery of the New
Issuance Notice, such offer shall be irrevocable unless and until the Company
shall have terminated the contemplated issuance of New Securities 


 


4

















 


in its entirety at which time the rights set forth herein
shall be applicable to any proposed issuance subsequent to any such
termination.  For purposes of this Section 3.2,
“Appropriate Percentage” shall mean that percentage of the New
Securities determined by dividing (i) the total number of Shares then
owned by a Preemptive Rightholder by (ii) the total number of Shares owned
by all the Preemptive Rightholders.


 


(b)        For a
period of 20 days after the giving of the New Issuance Notice pursuant to Section 3.2(a) (the
“Initial Preemptive Subscription Period”), each of the Preemptive
Rightholders shall have the right to purchase, in whole or in part, the Allocated
Shares offered to such Preemptive Rightholder as determined pursuant to Section 3.2(a) at
a purchase price equal to the Proposed Price and upon the terms and conditions
set forth in the New Issuance Notice.


 


(c)        The right
of each Preemptive Rightholder to purchase the New Securities so offered under Section 3.2(b) shall
be exercisable by delivering written notice of the exercise thereof, prior to
the expiration of the Initial Preemptive Subscription Period, to the Company,
which notice shall state the amount of New Securities that such Preemptive
Rightholder elects to purchase pursuant to Section 3.2(a).  The failure of a Preemptive Rightholder to
respond prior to the expiration of the Initial Preemptive Subscription Period
shall be deemed to be a waiver of such Preemptive Rightholder’s rights under
this Agreement solely with respect to its right to purchase the New Securities
referenced in the New Issuance Notice; provided that each Preemptive
Rightholder may waive its rights under Section 3.2(b) prior to the
expiration of Initial Preemptive Subscription Period by giving written notice
of such waiver to the Company.


 


(d)        If as of
the expiration of the Initial Preemptive Subscription Period, some but not all
of the Preemptive Rightholders have exercised their right to purchase the full
amount of New Securities to which they are entitled to purchase pursuant to
Sections 3.2(b) and (c) (any such Preemptive Rightholder which has
exercised in full its rights to purchase such New Securities, a “Fully
Exercising Preemptive Rightholder”), the Fully Exercising Preemptive
Rightholders shall have the right to purchase, in whole or in part, their
Oversubscription Appropriate Percentage (as defined herein) of the New
Securities which the Preemptive Rightholders did not exercise their right to
purchase pursuant to Sections 3.2(b) and (c) (the “Undersubscribed
Shares”) at a purchase price equal to the Proposed Price and upon the terms
and conditions set forth in the New Issuance Notice.  The right of the Fully Exercising Preemptive
Rightholders to purchase the Undersubscribed Shares may be exercised for a
period of ten days following the earlier of the expiration of the Initial
Preemptive Subscription Period or the date on which notice is given by the
Company to such Fully Exercising Preemptive Rightholders that all the
Preemptive Rightholders have either exercised their right to purchase the New
Securities pursuant to Sections 3.2(b) and (c) or waived their rights
to purchase any of such New Securities pursuant to Section 3.2(c) (the
“Oversubscription Period”).  For
purposes of this Section 3.2, “Oversubscription Appropriate Percentage”
shall mean that percentage of the Undersubscribed Shares determined by dividing
(i) the total number of Shares then owned by a Fully Exercising Preemptive
Rightholder by (ii) the total number of Shares owned by all the Fully
Exercising Preemptive Rightholders.


 


(e)        The right
of each Fully Exercising Preemptive Rightholder to purchase Undersubscribed
Shares pursuant to Section 3.2(d) shall be exercisable by delivering 


 


5

















 


written notice of the exercise thereof, prior to the
expiration of the Oversubscription Period, to the Company, which notice shall
state the amount of Undersubscribed Shares that such Fully Exercising
Preemptive Rightholder elects to purchase pursuant to Section 3.2(d).  The failure of a Fully Exercising Preemptive
Rightholder to respond prior to the expiration of the Oversubscription Period
shall be deemed to be a waiver of such Fully Exercising Preemptive Rightholder’s
rights under this Agreement solely with respect to its right to purchase the
Undersubscribed Shares included in the New Securities referenced in the New
Issuance Notice; provided that each Fully Exercising Preemptive Rightholder may
waive its rights under Section 3.2(d) prior to the expiration of
Oversubscription Period by giving written notice of such waiver to the Company.


 


(f)         The closing
of the purchase of New Securities subscribed for by the Preemptive Rightholders,
including the Fully Exercising Preemptive Rightholders, pursuant to this Section 3.2
shall be held at such time and place as the parties to the transaction may
reasonably agree.  At such closing, the
New Securities subscribed for shall be issued by the Company free and clear of
all liens, charges or encumbrances (other than those arising hereunder and
those attributable to actions by the purchasers thereof).  Each Preemptive Rightholder, including each
Fully Exercising Preemptive Rightholder, purchasing the New Securities shall
deliver at the closing payment in full in immediately available funds for the
New Securities purchased by it.  At such
closing, all of the parties to the transaction shall execute such additional
documents as are otherwise necessary, appropriate or customary for similar
financing transactions.  If any
Preemptive Rightholder, including any Fully Exercising Preemptive Rightholder,
fails to purchase any New Securities for which it exercised its right to
purchase pursuant to Sections 3.2(b) and (c) or 3.2(d) and (e),
such New Securities may be purchased by the Fully Exercising Preemptive
Rightholders which did purchase all the New Securities for which they exercised
their rights to purchase pursuant to Sections 3.2(b), (c), (d) and (e) in
the same manner provided in this Section 3.2 with respect to
Undersubscribed Shares and the resulting Oversubscription Period with respect
to such right to purchase shall be an “Oversubscription Period” for all
instances such term is used in this Section 3.2.  Notwithstanding the preceding sentence, the
obligations and liability of any Preemptive Rightholder, including any Fully
Exercising Preemptive Rightholder, which fails to purchase any New Securities
for which it exercised its right to purchase pursuant to Sections 3.2(b) and
(c) or 3.2(d) and (e) shall not be relieved as a result of any
Fully Exercising Preemptive Rightholder’s right to purchase, or any actual
purchase by any Fully Exercising Preemptive Rightholder of, any such New
Securities.


 


(g)        Following
the expiration of the later of the Initial Preemptive Subscription Period and,
if applicable, the Oversubscription Period, if the Preemptive Rightholders,
including any Fully Exercising Preemptive Rightholders, did not exercise their
right to purchase any of the New Securities, including the Undersubscribed
Shares, which were originally the subject of the New Issuance Notice, then the
Company may sell the remaining New Securities to the Subject Purchaser on terms
and conditions that are no more favorable to the Subject Purchaser than those
set forth in the New Issuance Notice; provided, however, that such sale is bona
fide and made pursuant to a contract entered into between the Company and the
Subject Purchaser and that such sale is consummated by not later than 90 days
following the earlier to occur of (i) receipt by the Company of written
waivers pursuant to Section 3.2(c) from all the Preemptive
Rightholders of their rights to purchase the Appropriate Percentage of New 


 


6

















 


Securities and, if applicable, written waivers pursuant to Section 3.2(e) from
all the Fully Exercising Preemptive Rightholders of their rights to purchase
the Oversubscription Appropriate Percentage of New Securities, and (ii) the
expiration of the Oversubscription Period, if applicable, and if not
applicable, the expiration of the Initial Preemptive Subscription Period.  If the sale of any of the New Securities is
not consummated by the expiration of such 90 day period, then the preemptive
rights afforded to the Shareholders under this Section 3.2 shall again
become effective, and no issuance and sale of New Securities may be made
thereafter by the Company without again offering the same in accordance with
this Section 3.2.


 


3.3           Change of
Control Call Option.


 


(a)        By not
later than five days following a Change of Control (as defined herein or in Section 3.1(b))
of any Shareholder, such Shareholder shall give the Company and each other
Shareholder notice of such Change of Control and shall disclose the number of
Shares and any other securities of the Company which were owned by the
Shareholder as of immediately prior to such Change of Control of such
Shareholder (the “Change of Control Securities”).  If the Shareholder fails to give the notice
required by the preceding sentence by the time required thereby, and another
Shareholder or the Company is or becomes aware that such Shareholder underwent
a Change of Control, then (i) if it is a Shareholder that is or becomes
aware of such Change of Control, that Shareholder shall reasonably promptly
inform the Company of such Change of Control and upon the Company being of the
reasonable belief that such a Change of Control has occurred, the Company shall
reasonably promptly provide the notice to the Shareholders that such
Shareholder which underwent the Change of Control failed to provide, or (ii) if
it is the Company that is or becomes aware of such Change of Control, the
Company shall reasonably promptly provide the notice that such Shareholder
which underwent the Change of Control failed to provide.  Any liability of a Shareholder which
undergoes a Change of Control for failure to give the notice required by the
first sentence of this Section 3.3(a) shall not be relieved as a
result of the Company or any other Shareholder being obligated to give, or
giving, the notice required by the second sentence of this Section 3.3(a).


 


(b)        For a
period of 20 days following the receipt of a notice given pursuant to Section 3.3(a),
the Company shall have the right to purchase from such Shareholder (or its
successor, as applicable), in whole or in part, the Change of Control
Securities.  The purchase price for the
Change of Control Securities shall be the book value, as determined in
accordance with the statutory accounting principles applicable to the Company,
of the Change of Control Securities as of the time such Shareholder underwent
the Change of Control (the “Call Option Purchase Price”).  To exercise its right to purchase the Change
of Control Securities, the Company shall deliver written notice of such
exercise to the Shareholder which underwent the Change of Control and the other
Shareholders prior to the expiration of such 20 day call exercise period.  The closing for any such exercised call option
shall occur on the fifth business day (or such longer period as may be required
by applicable law or in order to obtain applicable regulatory approval)
following receipt of the Company’s notice of exercise of its call option by the
Shareholder which underwent the Change of Control, or on such other date as may
be agreed by the Company and such Shareholder. 
At its option, the Company may pay in cash the entire amount of the Call
Option Purchase Price at such closing or it may elect to defer any amount of the
Call Option Purchase Price.  Any amounts
so deferred shall bear interest at the Deferred 


 


7

















 


Interest Rate (as defined herein).  The Company may pay any such deferred amounts
and accrued interest thereon at any time and from time to time; provided,
however, that all such deferred amounts and accrued but unpaid interest, shall
be due and payable on the fifth anniversary of the closing of the applicable
call option exercise.


 


(c)        Shareholders
other than the Shareholder which underwent the Change of Control shall have the
right to purchase, in whole or in part, any Change of Control Securities not
elected to be purchased by the Company pursuant to Section 3.3(b) at
a price equal to the Call Option Purchase Price.  To exercise its right to purchase the Change
of Control Securities, the applicable Shareholder shall deliver written notice
of such exercise to the Shareholder which underwent the Change of Control, the
Company and the other Shareholders by not later than the 20 days following the
earlier of (i) the expiration of the 20 day period during which the
Company has the right to exercise its call option for the Change of Control
Securities pursuant to Section 3.3(b) and (ii) the date the
Company waives its right to purchase such Change of Control Securities and has
given notice of the same to all the Shareholders (such deadline for exercising
a right to purchase Change of Control Securities referred to as the “Call
Option Exercise Deadline”).  The
notice of exercise shall indicate the number of Change of Control Securities
that the Shareholder seeks to purchase. 
If the aggregate number of Change of Control Securities sought to be
purchased by the exercising Shareholders (determined by adding all the eligible
securities each Shareholder states it seeks to purchase in its notice of
exercise) exceeds the actual number of Change of Control Securities eligible
for purchase, the number of Change of Control Securities which may be purchased
by a particular applicable Shareholder shall be reduced by an amount equal to
the product of the aggregate number of such excess Change of Control Securities
sought to be purchased by all the exercising Shareholders multiplied by
the quotient of (x) the number of Shares owned by all eligible
Shareholders which are exercising their call option rights minus the
number of Shares owned by the particular applicable exercising Shareholder divided
by (y) the number of Shares owned by all eligible Shareholders which
are exercising their call option rights, with any such result rounded up or
down to the nearest whole share as reasonably determined by the Company.  The closing of any such exercised call option
shall occur on the fifth business day (or such longer period as may be required
by applicable law or in order to obtain applicable regulatory approval)
following the Call Option Exercise Deadline, or on such other date as may be
agreed by the exercising Shareholder, the Company and the Shareholder which
underwent the Change of Control.  At its
option, the exercising Shareholder may pay in cash the entire amount of the
Call Option Purchase Price at such closing or it may elect to defer any amount
of the Call Option Purchase Price.  Any
amounts so deferred shall bear interest at the Deferred Interest Rate.  The exercising Shareholder may pay any such
deferred amounts and accrued interest thereon at any time and from time to
time; provided, however, that all such deferred amounts and accrued but unpaid
interest, shall be due and payable on the fifth anniversary of the closing of
the applicable call option exercise.


 


(d)        Definitions.  For purposes of this
Section 3.3, the following terms have the meanings set forth below:


 


(i)    “Change
of Control” means (A) the acquisition by any person or entity, or two
or more persons or entities acting in concert, of beneficial ownership (such
term, for purposes of this Section 3.3(d)(i), having the meaning provided


 


8
















 


such term
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
9.8% or more, or rights, options or warrants to acquire 9.8% or more, or any
combination thereof, of the outstanding shares of voting stock or other voting
interests of the Shareholder, including voting proxies for such shares, or the
power to direct the management and policies of the Shareholder, directly or
indirectly, excluding with respect to RMR, any person or entity, or two or more
persons or entities acting in concert, beneficially owning 9.8% or more of RMR’s
outstanding voting interests as of the date of this Agreement, and excluding
with respect to FVE, persons or entities that have rights to acquire 9.8% or
more of FVE’s shares of common stock by virtue of their holding convertible
notes of FVE outstanding as of the date of this Agreement, (B) the merger
or consolidation of the Shareholder with or into any other person or entity
(other than the merger or consolidation of any person or entity into the
Shareholder that does not result in a Change in Control of the Shareholder
under clauses (A), (C), (D) or (E) of this definition), (C) any
one or more sales or conveyances to any person or entity of all or any material
portion of the assets (including capital stock or other equity interests) or
business of the Shareholder, (D) the cessation, for any reason, of the
individuals who at the beginning of any 38 consecutive month period constituted
the board of directors (or analogous governing body) of the Shareholder
(together with any new directors (or analogous position) whose election by such
board or whose nomination for election by the shareholders of the Shareholder
was approved by a vote of a majority of the directors (or analogous position)
then still in office who were either directors (or analogous position) at the
beginning of any such period or whose election or nomination for election was
previously so approved) to constitute a majority of the board of directors (or
analogous governing body) of the Shareholder then in office or (E) in
respect of a Shareholder other than RMR, the termination (including by means of
nonrenewal) of the Shareholder’s management agreement with RMR by such
Shareholder or, in response to a breach of such agreement by such Shareholder,
by RMR; provided, however, a Change of Control shall not include:  (1) the acquisition by any person or
entity, or two or more persons or entities acting in concert, of beneficial
ownership of 9.8% or more of the outstanding shares of voting stock or other
voting interests of a Shareholder if such acquisition is approved by the
governing board of such Shareholder in accordance with the organizational
documents of such Shareholder and if such acquisition is otherwise in
compliance with applicable law; (2) the merger or consolidation of a
Shareholder with one or more other Shareholders or wholly owned subsidiaries of
any such Shareholders; or (3) a Change of Control which is approved by
Shareholders owning 75% of the Shares owned by all Shareholders.


 


(ii)   “Deferred
Interest Rate” means the London Interbank Offered Rate (rounded upward, if
necessary, to the nearest 1/100th of 1%) appearing on Reuters Screen LIBO Page (or
any successor page) as the London interbank offered rate for three month
deposits in U.S. dollars at approximately 11:00 a.m. (London time) two
days prior to applicable closing date (provided that if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates), plus 100 basis points, and this rate
shall be adjusted in three month intervals thereafter, in accordance with the
foregoing, with such adjustment date being treated as an “applicable closing
date” for purposes of determining the adjusted rate in accordance 


 


9

















 


with the
foregoing, for so long as any deferred amount pursuant to Sections 3.2(b) or
3.2(c) may be unpaid.


 


3.4           Permitted New Issuance of
Shares.  The prohibition on transfer of
Shares, the preemptive rights and the change of control call options created by
Sections 3.1, 3.2 and 3.3 of this Article III shall not apply to any sale
of Shares by the Company, or by any Shareholder or Shareholders, if the Shares
are sold to an entity which is managed by RMR that purchases insurance from the
Company, provided that any such sale does not reduce the ownership of any
Shareholder to less than ten percent (10%) of the Company’s outstanding voting
Shares.  The prohibition on the
preemptive rights and the change of control call options created by Sections
3.2 and 3.3, respectively, of this Article III shall not apply to the
20,000 Shares to be issued and sold by the Company to GOV pursuant to the GOV
Subscription Agreement and HRP’s spin off of GOV pursuant to the initial public
offering of GOV shares, which occurred during 2009 and prior to the date of
this Agreement, respectively, and the Original Shareholders waive any rights
they may have or have had under Sections 3.2 and 3.3 of this Article III
with respect to such transactions.


 


ARTICLE
IV



SPECIAL SHAREHOLDER APPROVAL REQUIREMENTS.


 


4.1           Special Shareholder Approval
Requirements.  For so long
as the Shareholders beneficially own a majority of the Company’s issued and
outstanding Shares, no action by the Company shall be taken with respect to any
of the following matters without the prior affirmative approval of Shareholders
owning 75% of the Shares owned by all the Shareholders:


 


(a)        any
amendment to the articles of incorporation or bylaws of the Company;


 


(b)        any merger
of the Company;


 


(c)        the sale of
all or substantially all of the Company’s assets;


 


(d)        any
reorganization or recapitalization of the Company; or


 


(e)        any
liquidation or dissolution of the Company.


 


If applicable law permits any of the foregoing actions to be
taken by the Company without a shareholders vote, the vote of all directors of
the Company designated by a Shareholder shall be considered the vote of the
Shareholder for purposes of any such action.


 


10

















 


ARTICLE
V



OTHER COVENANTS AND AGREEMENTS


 


5.1           Organizational Documents.  Subject to applicable law, each Shareholder
shall vote its Shares or execute any consents necessary, and each Shareholder
and the Company shall take all other actions necessary, to ensure that the
Company’s organizational documents facilitate, and do not at any time conflict
with any provision of, this Agreement or any applicable law, and to ensure that
the provisions hereof are implemented notwithstanding any inconsistent
provision in the Company’s organizational documents.  The parties hereto agree to amend, if
necessary, the Company’s organizational documents to conform to the provisions
set forth in this Agreement, to the extent permitted by applicable law.  In the event of any actual or apparent
inconsistency between this Agreement and the organizational documents, then, as
among the Shareholders, to the extent permitted by applicable law, this
Agreement shall control.


 


5.2           Reports and Information
Access.  For so long as a Shareholder
owns not less than 10% of all the issued and outstanding Shares, the Company
shall provide periodically, through the director(s) designated by such
Shareholder under Section 2.1, to the Shareholder financial information
regarding the Company and its operations and the Company shall permit the
Shareholder and its representatives reasonable access to the financial reports
and records of the Company so that the Shareholder may comply with its
financial reporting and tax reporting obligations and procedures, and disclosure
obligations under the federal securities laws and other applicable laws.


 


5.3           Compliance with Laws.  The Company shall comply in all material
respects with all applicable laws governing its business and operations.  Except as provided in Section 5.7, if a
Shareholder, by virtue of such Shareholder’s ownership interest in the Company
or actions taken by the Shareholder affecting the Company, triggers the
application of any requirement or regulation of any federal, state, municipal
or other governmental or regulatory body on the Company or any subsidiary of
the Company or any of their respective businesses, assets or operations,
including any obligations to make any filing with or otherwise notifying or
obtaining the consent, approval or other action of any federal, state,
municipal or other governmental or regulatory body, such Shareholder shall
promptly take all actions necessary and fully cooperate with the Company to
ensure that such requirements or regulations are satisfied without restricting,
imposing additional obligations on or in any way limiting the business, assets,
operations or prospects of the Company or any subsidiary of the Company.  Each Shareholder shall use best efforts to
cause its shareholders, directors (or analogous position), nominees for
director (or analogous position), officers, employees and agents to comply with
any applicable laws impacting the Company or any of its subsidiaries or their
respective businesses, assets or operations.


 


5.4           Cooperation; Further
Assurances.


 


(a)        The
Shareholders shall cooperate with each other and the Company in furtherance of
the Company’s underwriting of insurance policies and coverage with respect to
the Shareholders and their respective businesses, assets and properties as well
as in furtherance of the development and execution of the Company’s business as
an insurer.  The Shareholders 


 


11

















 


intend to transition (but shall not be obligated to do so)
their applicable insurance policies and coverage to the Company so that the
Company or its third party agents or contracting parties shall become the
underwriters of such current and future policies and coverage.


 


(b)        Each of the
parties shall execute such documents and perform such further acts (including
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement or the transactions contemplated hereby, including
in connection with any subsequent exercise by a party of a right afforded
hereunder to such party.


 


5.5           Confidentiality.  Except as may be required by applicable law
or the rules of any national securities exchange upon which a party’s
shares are listed for trading, none of the parties hereto shall make any
disclosure concerning this Agreement, the transactions contemplated hereby or
the business, operations and financial affairs of the Company without prior
approval by the other parties hereto; provided, however, that nothing in this
Agreement shall restrict any of the parties from disclosing information (a) that
is already publicly available, (b) that was known to such party on a
non-confidential basis prior to any relevant disclosure, (c) that may be
required or appropriate in response to any summons or subpoena or in connection
with any litigation, provided that such party will use reasonable efforts to
notify the other party in advance of such disclosure so as to permit the other
party to seek a protective order or otherwise contest such disclosure, and such
party will use reasonable efforts to cooperate, at the expense of the other
party, with the other party in pursuing any such protective order, (d) to
the extent that such party reasonably believes it appropriate in order to
protect its investment in its Shares in order to comply with any applicable
law, (e) to such party’s officers, directors, trustees, advisors,
employees, auditors or counsel or (f) as warranted pursuant to the parties’
disclosure obligations under federal securities laws.


 


5.6           Required Regulatory
Approvals.  Certain
transactions required, permitted or otherwise contemplated by this Agreement
may under certain circumstances require prior filings with and approvals, or
non-disapprovals, from the Indiana Department of Insurance or the Indiana
Insurance Commissioner.  Such
transactions include: (a) issuance or purchase of any additional capital
stock of the Company or other securities convertible into or exchangeable or
exercisable for capital stock of the Company pursuant to Sections 1.2 or 3.4; (b) transfer
of Shares to a wholly owned subsidiary of a Shareholder, to another Shareholder
or to a wholly owned subsidiary of another Shareholder pursuant to Sections 3.1(a) or
3.4; (c) exercise of preemptive rights by a Shareholder pursuant to Section 3.2;
and (d) exercise of call rights by the Company or a Shareholder pursuant
to Section 3.3 (including pursuant to the two provisos in Section 3.1(b)).  Notwithstanding anything to the contrary
contained in this Agreement, any such transactions requiring filings with and
approvals, or non-disapprovals, from the Indiana Department of Insurance or the
Indiana Insurance Commissioner shall not, to the extent within the control of a
party hereto, be entered into or consummated unless and until the required
filings have been made and the required approvals (or non-disapprovals) have
been obtained, and to the extent not within the control of an applicable party
hereto, such party shall use best efforts to cause such transactions not to be
entered into or consummated unless and until the required filings have been
made and the required approvals (or non-disapprovals) have been obtained.


 


12

















 


5.7           REIT Matters.  At the request of any Shareholder that
intends (for itself or for any of its affiliates) to qualify and be taxed as a
real estate investment trust under the Internal Revenue Code of 1986, as
amended (the “Code”), the Company shall (a) join with such
Shareholder (or, as applicable, such Shareholder’s affiliate) in making a “taxable
REIT subsidiary” election under Section 856(l) of the Code and (b) otherwise
reasonably cooperate with any request of such Shareholder (or its affiliate)
pertaining to such real estate investment trust status or taxation under the
Code.


 


ARTICLE
VI



REPRESENTATIONS AND WARRANTIES


 


6.1           The Company.  The Company represents and warrants to each
Shareholder, as of the date of this Agreement (unless any such representation
or warranty speaks as of another date, in which case, as of such date), as
follows:


 


(a)        Organization,
Existence, Good Standing and Power.  The Company is an Indiana insurance company
duly organized, validly existing and in good standing under the laws of the
State of Indiana and has the power and authority to execute, deliver and
perform its obligations under this Agreement.


 


(b)        Capitalization;
Subsidiaries.


 


(i)    As of
immediately prior to the execution and delivery of this Agreement, there are no
securities of the Company issued and outstanding, except for the Shares
previously issued pursuant to Section 1.1. 
Except as provided and contemplated by this Agreement, as of the date of
this Agreement, the Company has no commitment or arrangement to issue
securities of the Company to any person or entity.


 


(ii)   As of the
date of this Agreement, the Company has no subsidiaries.


 


(c)        Valid
Issuance of Shares.  The Shares being purchased by the
Shareholders hereunder, when issued, sold and delivered in accordance with the
terms of this Agreement for the consideration expressed herein, will be duly
and validly issued, fully paid and nonassessable, and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement and under applicable law.


 


(d)        Binding
Effect. 
This Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles relating to
enforceability (regardless of whether considered in a proceeding at law or in
equity).


 


13

















 


(e)        No
Contravention.  The execution and delivery of this Agreement
by the Company and the performance of its obligations hereunder and the
consummation by the Company of the transactions contemplated by this Agreement
and compliance by the Company with the provisions of this Agreement (i) have
been duly authorized by all necessary company action, (ii) do not contravene
the terms of the Company’s organizational documents, (iii) do not
materially violate, conflict with or result in any breach or contravention of,
or the creation of any material lien, charge or encumbrance under, any material
agreement, contract, license, permit or instrument to which the Company is a
party or by which the Company or any of its assets or properties are bound and (iv) do
not materially violate any law, statute, regulation, order or decree applicable
to, or binding upon, the Company or any of its assets or properties.


 


(f)         Consents.  No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any local, state or federal governmental authority or any other
person or entity (individually and collectively, a “Consent”), not
already obtained or made, and no lapse of a waiting period under any applicable
law, statute, regulation, order or decree, is necessary or required in
connection with the execution, delivery or performance by the Company of this
Agreement or the transactions contemplated hereby; provided, however, that the
foregoing representation and warranty shall not apply to any Consent which may
be required in the future as a result of the application of the rights and
obligations provided for hereunder or the conducting of the Company’s business.


 


(g)        Compliance
with Laws.  The Company is in compliance in all material
respects with all applicable laws, statutes, regulations, orders or decrees
applicable to, or binding upon, the Company or any of its assets or properties.


 


(h)        Offering.  Subject to the
accuracy of the Shareholder’s representations and warranties set forth in Sections
6.2(f) through 6.2(i), the offer, sale and issuance of the Shares to be
issued in conformity with the terms of this Agreement constitute transactions
which are exempt from the registration requirements of the Securities Act of
1933, as amended (the “Securities Act”), and from all applicable state
registration or qualification requirements. 
Neither the Company nor any person or entity acting on its behalf will
take any action that would cause the loss of such exemption.


 


(i)         No
Integration.  The Company has not, directly or through any
agent, sold, offered for sale, solicited offers to buy or otherwise negotiated
in respect of, any security (as defined in the Securities Act) which is or will
be integrated with the Shares sold pursuant to this Agreement in a manner that
would require the registration of the Shares under the Securities Act.


 


6.2           The Shareholders.  Each Shareholder represents and warrants to
the Company and the other Shareholders, as of the date of this Agreement, as
follows:


 


(a)        Organization,
Existence, Good Standing and Power.  The Shareholder (i) is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation; (ii) has all requisite power and authority
to conduct the business in which it is currently engaged; and (iii) has
the power and authority to execute, deliver and perform its obligations under
this Agreement.


 


14

















 


(b)        Binding
Effect. 
This Agreement has been duly executed and delivered by the Shareholder
and constitutes the legal, valid and binding obligations of the Shareholder,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles relating to
enforceability (regardless of whether considered in a proceeding at law or in
equity).


 


(c)        No
Contravention.  The execution and delivery of this Agreement
by the Shareholder and the performance of its obligations hereunder and the
consummation by the Shareholder of the transactions contemplated by this
Agreement and compliance by the Shareholder with the provisions of this
Agreement (i) have been duly authorized by all necessary company action, (ii) do
not contravene the terms of the Shareholder’s organizational documents, (iii) do
not materially violate, conflict with or result in any breach or contravention
of, or, except with respect to any Existing Pledge which the Shareholder or any
of its assets or properties may be subject, the creation of any material lien,
charge or encumbrance under, any material agreement, contract, license, permit
or instrument to which the Shareholder is a party or by which the Shareholder
or any of its assets or properties are bound and (iv) do not materially
violate any law, statute, regulation, order or decree applicable to, or binding
upon, the Shareholder or any of its assets or properties.


 


(d)        Consents.  No Consent, not
already obtained or made, and no lapse of a waiting period under any applicable
law, statute, regulation, order or decree, is necessary or required in
connection with the execution, delivery or performance by the Shareholder of
this Agreement or the transactions contemplated hereby; provided, however, that
the foregoing representation and warranty shall not apply to any Consent which
may be required in the future as a result of the application of the rights and
obligations provided for hereunder or the conducting of the Company’s business.


 


(e)        Compliance
with Laws.  The Shareholder is in compliance in all
material respects with all applicable laws, statutes, regulations, orders or
decrees applicable to, or binding upon, the Shareholder or any of its assets or
properties.


 


(f)         Purchase
Entirely for Own Account.  The Shares are being acquired for investment
for the Shareholder’s own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and the Shareholder has
no present intention of selling, granting any participation with respect to or
otherwise distributing the Shares. 
Except as provided by this Agreement, the Shareholder does not have any
contract, undertaking, agreement or arrangement with any person or entity to
sell or transfer to any person or entity, or grant participation rights to any
person or entity with respect to, any of the Shares.


 


(g)        Disclosure
of Information.  The Shareholder has received all the
information from the Company and its management that the Shareholder considers
necessary or appropriate for deciding whether to purchase the Shares
hereunder.  The Shareholder further
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the Company, its financial condition, results of
operations and prospects and the terms and conditions of the offering of the
Shares sufficient to enable it to evaluate its investment.


 


15

















 


(h)        Investment
Experience and Accredited Investor Status.  The Shareholder is an “accredited investor”
(as defined in Regulation D under the Securities Act).  The Shareholder has such knowledge and
experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Shares to be purchased hereunder.


 


(i)         Restricted
Securities.    The Shareholder understands that the
Shares, when issued, shall be “restricted securities” under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws the Shares
may be resold without registration under the Securities Act only in certain
limited circumstances.


 


ARTICLE
VII



TERMINATION


 


7.1           Termination.  This Agreement shall remain in full force and
effect until the sooner of:  (a) its
termination pursuant to the next succeeding sentence of this Section 7.1
or (b) the dissolution of the Company; provided, however, that the
dissolution of the Company, the merger of the Company with, or the transfer of
all or substantially all the assets of the Company to, another entity which
continues substantially all of the Company’s business shall not of itself
terminate this Agreement.  This Agreement
may be terminated at any time by the Shareholders owning at least 75% of the
issued and outstanding Shares owned by all Shareholders.  Section 5.5 and Article VIII shall
survive any termination or expiration of this Agreement.


 


ARTICLE
VIII



MISCELLANEOUS


 


8.1           Notices.  Any notices or other communications required
or permitted under, or otherwise in connection with, this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person,
upon confirmation of receipt when transmitted by facsimile transmission, on the
next business day if transmitted by a nationally recognized overnight courier
or on the third business day following mailing by first class mail, postage
prepaid, in each case as follows (or at such other United States address or
facsimile number for a party as shall be specified by like notice):


 


Notices
to the Company:


 


Affiliates
Insurance Company

101 West Washington Street, Suite 1100

Indianapolis, Indiana 46204

Attention:  President/Vice President

Facsimile No.:   (317) 632-2883


 


16

















 


with
a copy to:


 


Affiliates
Insurance Company

400 Centre Street

Newton, Massachusetts 02458

Attention:  President/Vice President

Facsimile No.:  (617) 928-1305


 


Notices
to FVE:


 


Five
Star Quality Care, Inc.

400 Centre Street

Newton, Massachusetts 02458

Attention:  President

Facsimile No.:  (617) 796-8385


 


Notices
to HPT:


 


Hospitality
Properties Trust

400 Centre Street

Newton, Massachusetts 02458

Attention:  President

Facsimile No.:  (617) 969-5730


 


Notices
to HRP:


 


HRPT Properties Trust


400
Centre Street

Newton, Massachusetts 02458

Attention:  President

Facsimile No.:  (617) 332-2261


 


Notices
to SNH:


 


Senior
Housing Properties Trust


400
Centre Street

Newton, Massachusetts 02458

Attention:  President

Facsimile No.:  (617) 796-8349


 


Notices
to TA:


 


TravelCenters
of America LLC


24601
Center Ridge Road, Suite 200

Westlake, Ohio 44145

Attention:  President

Facsimile No.:  (440) 808-3301


 


17
















 


Notices to RMR:


 


Reit
Management & Research LLC


400
Centre Street

Newton, Massachusetts 02458

Attention:  President

Facsimile No.:  (617) 928-1305


 


and


 


Notices
to GOV:


 


Government Properties Income Trust

400 Centre Street

Newton, Massachusetts 02458

Attention:  President

Facsimile No.:  (617) 219-1441


 


8.2           Successors and Assigns;
Third Party Beneficiaries.  This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. 
Except as permitted by Section 3.1 and Section 3.4, no party
may assign this Agreement or its rights hereunder or delegate its duties
hereunder without the written consent of the other parties.  Except as otherwise provided in Section 8.7,
no person or entity other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.


 


8.3           Amendment and Waiver.


 


(a)        No failure
or delay on the part of any party in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.  The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to each
party at law, in equity or otherwise. 
Any party hereto may waive in whole or in part any right afforded to
such party hereunder.


 


(b)        Any
amendment, supplement or modification of or to any provision of this Agreement,
shall be effective upon the written agreement of the Company and the
Shareholders owning not less than 75% of all Shares owned by the Shareholders;
provided, however, that any amendment, supplement or modification of Article I
or Article II shall require the approval of any Shareholder which may be
adversely affected by any such amendment, supplement or modification.


 


8.4           Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed


 


18

















 


shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.


 


8.5           Headings.  The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.


 


8.6           Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Indiana without regard to the conflicts of laws rules thereof,
which would require the application of the laws of another jurisdiction.


 


8.7           Dispute Resolution


 


(a)           Any
disputes, claims or controversies between the parties (i) arising out of
or relating to this Agreement, the Company, its business, assets or operations
or any insurance policies or coverage underwritten by the Company or any of its
third party agents in furtherance of the Company’s insurance business or (ii) brought
by or on behalf of any shareholder of the Company (which, for purposes of this Section 8.7,
shall mean any shareholder of record or any beneficial owner of shares of the
Company, or any former shareholder of record or beneficial owner of shares of
the Company), either on his, her or its own behalf, on behalf of the Company or
on behalf of any series or class of shares of the Company or shareholders of
the Company against the Company or any director, officer, manager (including
RMR or its successor), agent or employee of the Company, including disputes,
claims or controversies relating to the meaning, interpretation, effect,
validity, performance or enforcement of this Agreement or the articles of
incorporation or bylaws of the Company (all of which are referred to as “Disputes”),
or relating in any way to such a Dispute or Disputes shall, on the demand of
any party to such Dispute, be resolved through binding and final arbitration in
accordance with the Commercial Arbitration Rules (the “Rules”) of
the American Arbitration Association (“AAA”) then in effect, except as
those Rules may be modified in this Section 8.7.  For the avoidance of doubt, and not as a
limitation, Disputes are intended to include derivative actions against
directors, officers or managers of the Company and class actions by a
shareholder against those individuals or entities and the Company.  For the avoidance of doubt, a Dispute shall
include a Dispute made derivatively on behalf of one party against another
party.


 


(b)           There
shall be three arbitrators.  If there are
only two parties to the Dispute, each party shall select one arbitrator within
15 days after receipt by respondent of a copy of the demand for
arbitration.  Such arbitrators may be
affiliated or interested persons of such parties.  If either party fails to timely select an
arbitrator, the other party to the Dispute shall select the second arbitrator
who shall be neutral and impartial and shall not be affiliated with or an
interested person of either party.  If
there are more than two parties to the Dispute, all claimants, on the one hand,
and all respondents, on the other hand, shall each select, by the vote of a
majority of the claimants or the respondents, as the case may be, one
arbitrator. Such arbitrators may be affiliated or interested persons of the
claimants or the respondents, as the case may be.  If either all claimants or all respondents
fail to timely select an arbitrator then such arbitrator (who shall be neutral,
impartial and unaffiliated with any party) shall be appointed by the AAA.  The two arbitrators so appointed shall
jointly appoint the third and presiding arbitrator (who shall be neutral,
impartial and unaffiliated with any party) within 15 days of the appointment of
the second arbitrator.  If the third
arbitrator has not been appointed within the


 


19

















 


time limit specified herein, then the AAA shall provide a
list of proposed arbitrators in accordance with the Rules, and the arbitrator
shall be appointed by the AAA in accordance with a listing, striking and
ranking procedure, with each party having a limited number of strikes,
excluding strikes for cause.


 


(c)           The
place of arbitration shall be Indianapolis, Indiana unless otherwise agreed by
the parties.


 


(d)          There
shall be only limited documentary discovery of documents directly related to
the issues in dispute, as may be ordered by the arbitrators.


 


(e)           In
rendering an award or decision (the “Award”), the arbitrators shall be
required to follow the laws of the State of Indiana.  Any arbitration proceedings or Award rendered
hereunder and the validity, effect and interpretation of this arbitration
agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et
seq.  The Award shall be in writing and
may, but shall not be required to, briefly state the findings of fact and
conclusions of law on which it is based.


 


(f)            Except
to the extent otherwise agreed by the parties, each party involved in a Dispute
shall bear its own costs and expenses (including attorneys’ fees), and the
arbitrators shall not render an award that would include shifting of any such
costs or expenses (including attorneys’ fees) or, in a derivative case or class
action, award any portion of the Company’s award to the claimant or the
claimant’s attorneys.  Each party (or, if
there are more than two parties to the Dispute, all claimants, on the one hand,
and all respondents, on the other hand, respectively) shall bear the costs and
expenses of its (or their) selected arbitrator and the parties (or, if there
are more than two parties to the Dispute, all claimants, on the one hand, and
all respondents, on the other hand) shall equally bear the costs and expenses
of the third appointed arbitrator.


 


(g)           An
Award shall be final and binding upon the parties thereto and shall be the sole
and exclusive remedy between such parties relating to the Dispute, including
any claims, counterclaims, issues or accounting presented to the
arbitrators.  Judgment upon the Award may
be entered in any court having jurisdiction. 
To the fullest extent permitted by law, no application or appeal to any
court of competent jurisdiction may be made in connection with any question of
law arising in the course of arbitration or with respect to any award made
except for actions relating to enforcement of this agreement to arbitrate or
any arbitral award issued hereunder and except for actions seeking interim or
other provisional relief in aid of arbitration proceedings in any court of
competent jurisdiction.


 


(h)           Any
monetary award shall be made and payable in U.S. dollars free of any tax,
deduction or offset.  Each party against
which the Award assesses a monetary obligation shall pay that obligation on or
before the 30th day following the date of the Award or such
other date as the Award may provide.


 


(i)            This
Section 8.7 is intended to benefit and be enforceable by the shareholders,
directors, officers, managers (including RMR or its successor), agents or
employees of the Company and the Company and shall be binding on the
shareholders of the


 


20

















 


Company and the Company, as applicable, and shall be in
addition to, and not in substitution for, any other rights to indemnification
or contribution that such individuals or entities may have by contract or
otherwise.


 


8.8           Interpretation and
Construction.


 


(a)        The words “hereof”,
“herein”,
“hereby”
and “hereunder”
and words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.


 


(b)        Unless the
context otherwise requires, references to sections, subsections or Articles
refer to sections, subsections or Articles of this Agreement.


 


(c)        Terms
defined in the singular shall have a comparable meaning when used in the
plural, and vice versa.


 


(d)        The words “include”
and “including” and words of similar import shall be deemed to be followed by
the words “without limitation”.


 


(e)        Words
importing gender include both genders.


 


(f)         Any
agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated
therein.  In addition, references to any
statute are to that statute and to the rules and regulations promulgated
thereunder.


 


(g)        The parties
hereto have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as jointly drafted by
the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provision of this
Agreement.


 


8.9          Severability.  If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.


 


8.10         Entire Agreement.  This Agreement and the GOV Subscription
Agreement constitute the entire agreement, and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to
the subject matter of this Agreement.


 


21

















 


8.11         Non-liability of Trustees
and Directors.


 


(a)        COPIES OF
THE DECLARATIONS OF TRUST OF HPT, HRP, SNH AND GOV, AS IN EFFECT ON THE DATE
HEREOF, TOGETHER WITH ALL AMENDMENTS AND SUPPLEMENTS THERETO, IF ANY, ARE DULY
FILED IN THE OFFICE OF THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
MARYLAND.  THE DECLARATIONS OF TRUST, AS
AMENDED AND SUPPLEMENTED, OF HPT, HRP, SNH AND GOV, PROVIDE THAT NO TRUSTEE,
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT, HRP, SNH OR GOV, AS APPLICABLE,
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, HPT, HRP, SNH OR GOV.  ALL PERSONS DEALING WITH HPT, HRP, SNH OR GOV
IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HPT, HRP, SNH OR GOV, AS
APPLICABLE, FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


(b)        A COPY OF
THE ARTICLES OF INCORPORATION, AS IN EFFECT ON THE DATE HEREOF, OF FVE,
TOGETHER WITH ALL AMENDMENTS AND SUPPLEMENTS THERETO, IS DULY FILED IN THE
OFFICE OF THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.  NO DIRECTOR, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF FVE SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, FVE. 
ALL PERSONS DEALING WITH FVE, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS
OF FVE FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


(c)        A COPY OF
THE LIMITED LIABILITY COMPANY AGREEMENT, AS IN EFFECT ON THE DATE HEREOF, OF
TA, TOGETHER WITH ALL AMENDMENTS THERETO, IS AVAILABLE TO A SHAREHOLDER PARTY
HERETO UPON WRITTEN REQUEST MADE TO TA. 
NO DIRECTOR, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF TA SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR
CLAIM AGAINST, TA.  ALL PERSONS DEALING
WITH TA, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TA FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


[The Remainder of This Page Intentionally Left Blank]


 


22

















 


IN
WITNESS WHEREOF, the undersigned have executed, or have caused to be executed,
this Amended and Restated Shareholders Agreement on the date first written
above.


 


	
  AFFILIATES
  INSURANCE COMPANY

  	
  SENIOR HOUSING PROPERTIES TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Jennifer B. Clark

  	
   

  	
  By:

  	
  /s/
  David J. Hegarty

  
	
   

  	
  Name:
  Jennifer B. Clark

  	
   

  	
  Name:
  David J. Hegarty

  
	
   

  	
  Title:
    President

  	
   

  	
  Title:   President

  
	
   

  	
   

  
	
  FIVE
  STAR QUALITY CARE, INC.

  	
  TRAVELCENTERS
  OF AMERICA LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Bruce J. Mackey

  	
   

  	
  By:

  	
  /s/
  Mark R. Young

  
	
   

  	
  Name:
  Bruce J. Mackey

  	
   

  	
  Name:
  Mark R. Young

  
	
   

  	
  Title:   President

  	
   

  	
  Title:   Executive
  Vice President and General Counsel

  
	
   

  	
   

  
	
  HOSPITALITY
  PROPERTIES TRUST

  	
  REIT
  MANAGEMENT & RESEARCH LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Mark L. Kleifges

  	
   

  	
  By:

  	
  /s/
  Richard A. Doyle, Jr.

  
	
   

  	
  Name:
  Mark L. Kleifges

  	
   

  	
  Name:
  Richard A. Doyle, Jr.

  
	
   

  	
  Title:
    Chief Financial Officer

  	
   

  	
  Title:
    Senior Vice President

  
	
   

  	
   

  
	
  HRPT
  PROPERTIES TRUST

  	
  GOVERNMENT PROPERTIES INCOME TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  John A. Mannix

  	
   

  	
  By:

  	
  /s/
  David M. Blackman

  
	
   

  	
  Name:
  John A. Mannix

  	
   

  	
  Name:
  David M. Blackman

  
	
   

  	
  Title:   President

  	
   

  	
  Title:   Chief
  Financial Officer