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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM 8-K

 

CURRENT REPORT Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported): May 28, 2020

 

DIVERSIFIED HEALTHCARE TRUST

(Exact Name of Registrant as Specified in Its Charter)

 

Maryland

(State or Other Jurisdiction of Incorporation)

 

001-15319   04-3445278
(Commission File Number)   (IRS Employer Identification No.)
     

Two Newton Place,

255 Washington Street, Suite 300

Newton, Massachusetts

  02458-1634
(Address of Principal Executive Offices)   (Zip Code)

 

617-796-8350

(Registrant’s Telephone Number, Including Area Code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Shares of Beneficial Interest   DHC   The Nasdaq Stock Market LLC
5.625% Senior Notes due 2042   DHCNI   The Nasdaq Stock Market LLC
6.25% Senior Notes due 2046   DHCNL   The Nasdaq Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 

 

 

 

 

In this Current Report on Form 8-K, the terms “we”, “us”, “our” and “the Company” refer to Diversified Healthcare Trust.

 

Item 1.01.Entry into a Material Definitive Agreement.

 

Item 2.03.Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

On May 28, 2020, we agreed to sell $1.0 billion aggregate principal amount of our 9.750% Senior Notes due 2025, or the Notes, in an underwritten public offering. The Notes are expected to be issued on or about June 2, 2020. The Notes will be fully and unconditionally guaranteed, on a joint and several basis and on a senior unsecured basis, by all of our subsidiaries, except for our foreign subsidiaries and certain other excluded subsidiaries. The Notes and the guarantees thereof will be issued under our Indenture, dated February 18, 2016, or the Base Indenture, between us and U.S. Bank National Association, as trustee, or U.S. Bank, and a supplemental indenture thereto, to be dated on or about June 2, 2020, or the Supplemental Indenture, among us, the subsidiary guarantors and U.S. Bank. The Notes will be our senior unsecured obligations and the guarantees will be the subsidiary guarantors’ senior unsecured obligations.

 

The Notes will be subject to certain restrictive financial and operating covenants, including covenants that restrict our ability to incur debts, including debts secured by mortgages on our properties, in excess of calculated amounts and require us to maintain certain financial ratios.

 

The foregoing description of the covenants applicable to the Notes is qualified in its entirety by reference to such covenants as they appear in the Supplemental Indenture, the form of which is filed as Exhibit 4.2 to this Current Report on Form 8-K, or in the Base Indenture, which is filed as Exhibit 4.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission, or SEC, on February 18, 2016, which is incorporated herein by reference.

 

The Notes will be sold to the public at 100% of their principal amount. We expect to use the approximately $983.5 million of net proceeds from the offering of the Notes (after deducting estimated offering expenses and underwriters’ discounts) for general business purposes, including to repay our $250.0 million term loan and to reduce amounts outstanding under our revolving credit facility.

 

Affiliates of certain of the underwriters are lenders under our $250.0 million term loan and our revolving credit facility and will receive pro rata portions of the net proceeds from this offering used to repay amounts outstanding thereunder. Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us. They have received, and may in the future receive, customary fees and commissions for these transactions

 

A prospectus supplement relating to the Notes will be filed with the SEC. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

Warning Concerning Forward-Looking Statements

 

This Current Report on Form 8-K contains statements that constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other securities laws. Also, whenever we use words such as “believe”, “expect”, “anticipate”, “intend”, “plan”, “estimate”, “will”, “may” and negatives or derivatives of these or similar expressions, we are making forward-looking statements. These forward-looking statements are based upon our present intent, beliefs or expectations, but forward-looking statements are not guaranteed to occur and may not occur. Actual results may differ materially from those contained in or implied by our forward-looking statements as a result of various factors. For example:

 

·We expect to issue and deliver the Notes on or about June 2, 2020. In fact, the issuance and delivery of the Notes is subject to various conditions and contingencies as are customary in underwriting agreements in the United States. If these conditions are not satisfied or the specified contingencies do not occur, this offering may be delayed or may not be completed, and

 

·Our current intent is to use the proceeds from the offering of the Notes for general business purposes, including to repay our $250.0 million term loan and to reduce amounts outstanding under our revolving credit facility. However, the receipt and use of the proceeds is dependent on the completion of this offering and may not occur.

 

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The information contained in our filings with the SEC, including under the caption “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2019 and our Quarterly report on Form 10-Q for the quarter ended March 31, 2020, identifies other important factors that could cause our actual results to differ materially from those stated in or implied by our forward-looking statements. Our filings with the SEC are available on the SEC’s website at www.sec.gov.

 

You should not place undue reliance upon forward-looking statements.

 

Except as required by law, we do not intend to update or change any forward-looking statements as a result of new information, future events or otherwise.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)   Exhibits
1.1   Underwriting Agreement, dated as of May 28, 2020, among the Company, certain subsidiaries of the Company named therein as guarantors and the underwriters named therein, pertaining to $1.0 billion in aggregate principal amount of the Company’s 9.750% Senior Notes due 2025. (Filed herewith.)
     
4.1   Indenture, dated as of February 18, 2016, between the Company and U.S. Bank National Association. (Incorporated by reference to the Company’s Current Report on Form 8-K filed on February 18, 2016.)
     
4.2   Form of Third Supplemental Indenture among the Company, certain subsidiaries of the Company named therein as guarantors and U.S. Bank National Association, including the form of 9.750% Senior Notes due 2025. (Filed herewith.)
     
5.1   Opinion of Sullivan & Worcester LLP. (Filed herewith.)
     
5.2   Opinion of Venable LLP. (Filed herewith.)
     
5.3   Opinion of Taft Stettinius & Hollister LLP. (Filed herewith.)
     
8.1   Opinion of Sullivan & Worcester LLP re: tax matters. (Filed herewith.)
     
23.1   Consent of Sullivan & Worcester LLP (contained in Exhibits 5.1 and 8.1.)
     
23.2   Consent of Venable LLP (contained in Exhibit 5.2.)
     
23.3   Consent of Taft Stettinius & Hollister LLP. (contained in Exhibit 5.3.)
     
104     Cover Page Interactive Data File. (Embedded within the Inline XBRL document.)

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  DIVERSIFIED HEALTHCARE TRUST
     
     
  By:  /s/ Richard W. Siedel, Jr.
  Name: Richard W. Siedel, Jr.
  Title: Chief Financial Officer and Treasurer

 

Dated:  June 1, 2020

 

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Exhibit 1.1

 

EXECUTION VERSION

 

DIVERSIFIED HEALTHCARE TRUST

 

$1,000,000,000 Aggregate Principal Amount 9.750% Senior Notes Due 2025

 

UNDERWRITING AGREEMENT

 

May 28, 2020

 

 

 

 

UNDERWRITING AGREEMENT

 

May 28, 2020

 

Wells Fargo Securities, LLC
Citigroup Global Markets Inc.
PNC Capital Markets LLC
RBC Capital Markets, LLC

As Representatives of the Several Underwriters

 

c/o Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
 

Ladies and Gentlemen:

 

Diversified Healthcare Trust (formerly known as Senior Housing Properties Trust), a real estate investment trust organized under the laws of the State of Maryland (the “Company”), proposes to issue and sell to the underwriters named in Schedule A attached hereto (the “Underwriters”), for whom Wells Fargo Securities, LLC, Citigroup Global Markets Inc., PNC Capital Markets LLC and RBC Capital Markets, LLC are acting as representatives (the “Representatives”), $1,000,000,000 in aggregate principal amount of its 9.750% Senior Notes Due 2025 (the “Notes”). The payment of principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the “Guarantees”), jointly and severally by each of the entities named in Schedule B attached hereto (the “Guarantors”), each of which is a subsidiary of the Company. The Notes and the Guarantees are collectively referred to herein as the “Securities.”

 

The Securities are to be issued pursuant to an indenture dated as of February 18, 2016 (the “Base Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a third supplemental indenture relating to the Securities to be dated as of June 2, 2020 (the “Supplemental Indenture”), among the Company, the Guarantors and the Trustee. The Base Indenture and the Supplemental Indenture are referred to collectively herein as the “Indenture.” Copies of the Indenture, in substantially final form, have been delivered to the Underwriters.

 

The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”), in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”), a shelf registration statement on Form S-3 (File No. 333-225831) (the “Original Registration Statement”), and the Company and the Guarantors have prepared and filed with the Commission a post-effective amendment No. 1 to that shelf registration statement (“Post-Effective Amendment No. 1”) in accordance with the provisions of the Act, in each case including a prospectus relating to the registration of various securities that may be issued from time to time by the Company, including the Notes, and by the Guarantors, including the Guarantees. The Original Registration Statement and Post-Effective Amendment No. 1 have become effective under the Act.

 

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The Company will next file with the Commission pursuant to Rule 424(b) under the Act a final prospectus supplement to the prospectus included in Post-Effective Amendment No. 1 describing the Securities and the offering thereof, in such form as has been provided to or discussed with, and approved by, the Underwriters.

 

Except where the context otherwise requires, the term “Registration Statement” as used in this Agreement means the shelf registration statement, as amended at the time it became effective for purposes of Section 11 of the Act, as such section applies to the respective Underwriters (the “Effective Time”), including (i) all documents filed as part thereof or incorporated by reference or deemed to be incorporated by reference therein and (ii) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the Effective Time; provided however, that the references in this Agreement to the “Registration Statement,” at any given time, mean the shelf registration statement, as amended at such time, including any of such documents or information that are part of the registration statement at such time.

 

Except where the context otherwise requires, the term “Basic Prospectus” as used in this Agreement means the prospectus dated May 28, 2020 included in Post-Effective Amendment No. 1. Except where the context otherwise requires, the term “Prepricing Prospectus” as used in this Agreement means each preliminary form of the Prospectus (as defined herein) subject to completion, if any, used in connection with the offering of the Securities. Except where the context otherwise requires, the term “Prospectus Supplement” as used in this Agreement means any final prospectus supplement specifically relating to the Securities, in the form filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Act. Except where the context otherwise requires, the term “Prospectus” as used in this Agreement means the Basic Prospectus together with the Prospectus Supplement.

 

Permitted Free Writing Prospectuses,” as used herein, means the documents listed on Schedule C attached hereto and each “road show” (as defined in Rule 433 under the Act), if any, related to the offering of the Securities contemplated hereby that is a “written communication” (as defined in Rule 405 under the Act).

 

Testing-the-Waters Communication,” as used herein, means any oral or written communication with potential investors undertaken in reliance on Rule 163B under the Act.

 

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Written Testing-the-Waters Communication,” as used herein, means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Act.

 

Disclosure Package,” as used herein, means the Basic Prospectus, including without limitation the documents incorporated by reference therein as of the time of sale (as defined below), together with any Prepricing Prospectus and the Permitted Free Writing Prospectuses listed on Schedule C.

 

Any reference in this Agreement to the shelf registration statement, the Original Registration Statement, Post-Effective Amendment No. 1, the Registration Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, in each case as amended (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference in this Agreement to the term “amend,” “amendment” or “supplement” with respect to the shelf registration statement, the Registration Statement, Basic Prospectus, any Prepricing Prospectus, any Prospectus Supplement, any Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or after the effective date of the Original Registration Statement or Post-Effective Amendment No.1, as applicable, or the date of such Basic Prospectus, such Prepricing Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference.

 

The Company and the Underwriters agree as follows:

 

1.                  Sale and Purchase. Upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each Underwriter, and, upon the basis of the representations, warranties and agreements of the Company and the Guarantors herein contained and subject to all the terms and conditions set forth herein, each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of 98.5% of the principal amount of the Notes, plus accrued interest, if any, the aggregate principal amount of Notes set forth opposite the name of such Underwriter in Schedule A attached hereto (subject to adjustment in accordance with Section 8 hereof).

 

The Company is advised by you that the Underwriters intend (i) to make a public offering of their respective portions of the Notes as soon after the date hereof as in your judgment is advisable and (ii) initially to offer the Notes upon the terms set forth in the Prospectus. You may from time to time increase or decrease the public offering price after the initial public offering to such extent as you may determine.

 

As used herein, “business day” shall mean a day on which the Nasdaq Stock Market LLC (the “Nasdaq”) is open for trading.

 

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2.                  Payment and Delivery. Payment of the purchase price for the Notes shall be made to the Company by Federal Funds wire transfer, against delivery of the Notes to you through the facilities of the Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. The Notes shall be delivered in the form of one or more permanent global securities deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. Interests in such global security will be held in book-entry form through DTC, except in the limited circumstances described in the Prospectus. Such payment and delivery shall be made at 10:00 A.M., New York City time, on June 2, 2020 (unless another time shall be agreed to by you or unless postponed in accordance with the provisions of Section 8 hereof). The time at which such payment and delivery are actually made is hereinafter sometimes called the “time of purchase.” For purposes of this Agreement, 5:11 P.M., New York City time, on May 28, 2020 shall be referred to as the “time of sale.”

 

Deliveries of the documents described in Section 6 hereof with respect to the purchase of the Notes shall be made at 9:00 A.M., New York City time, at such location(s) as shall be agreed upon by you and the Company on the date of the closing of the purchase of the Notes.

 

3.                  Representations and Warranties of the Company and the Guarantors. The Company and the Guarantors, jointly and severally, represent and warrant to each of the Underwriters as of the date of this Agreement, as of the time of sale and as of the time of purchase, and agree with each of the Underwriters that:

 

(a)               no order preventing or suspending the use of the Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus is in effect and no proceedings for such purpose are pending or, to the knowledge of the Company or the Guarantors, threatened by the Commission or the securities authority of any state or other jurisdiction. The Original Registration Statement and Post-Effective Amendment No. 1 have become effective under the Act; to the knowledge of the Company or the Guarantors after reasonable inquiry, no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission or the securities authority of any state or other jurisdiction;

 

(b)               (i) the Company and the Guarantors are eligible to use Form S-3 and the offering of the Securities complies and will comply with the requirements of Rule 415 under the Act including, without limitation, Rule 415(a)(5); (ii) each part of the Registration Statement, when it became effective, complied, or with respect to any part of the Registration Statement that has not yet become effective, will comply at the time of effectiveness, and as of the date hereof and, as amended or supplemented, at the time of purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, will comply, in all material respects, with applicable requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the “1939 Act”); (iii) each part of the Registration Statement did not, as of the Effective Time, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) each Prepricing Prospectus, if any, complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; (v) the Disclosure Package, as of the time of sale, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, in all material respects with the requirements of the Act and the 1939 Act; (vii) each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act) and the 1939 Act; (viii) at no time during the period that begins on the earlier of the date of the Prospectus Supplement and the date the Prospectus Supplement is filed with the Commission and ends at the later of (A) the time of purchase and (B) the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities did or will any Prospectus Supplement or the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ix) at no time during the period that begins on the date of such Permitted Free Writing Prospectus and continues through the time of the filing of the Prospectus with the Commission did or will any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (x) any individual Written Testing-the-Waters Communication, when considered together with the Disclosure Package as of the time of sale, did not, and as of the time of purchase, will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph (b) do not apply to (i) statements or omissions in the Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus based upon information relating to any Underwriter furnished to the Company by such Underwriter through the Representatives expressly for use therein or (ii) the Trustee’s Statement of Eligibility and Qualification on Form T-1 under the 1939 Act;

 

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(c)               (i) neither the Company nor any of the Guarantors has, directly or indirectly, distributed or will distribute any offering material in connection with the offering or sale of the Securities other than the Basic Prospectus, any Prepricing Prospectus, the Permitted Free Writing Prospectuses, if any, and the Prospectus; (ii) neither the Company nor any of the Guarantors has, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; (iii) assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164), (iv) the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, (v) the Prepricing Prospectus dated May 28, 2020 is a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act, (vi) none of the Company, the Guarantors or the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Securities, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act, (vii) the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Securities contemplated by the Registration Statement, (viii) the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Securities contemplated hereby is solely the property of the Company;

 

(d)               neither the Company nor any Guarantor (A) has alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501 under the Act and otherwise in compliance with the requirements of Rule 163B under the Act and (B) has authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company and the Guarantors reconfirm that the Representatives have been authorized to act on their behalf in undertaking Testing-the-Waters Communications. Neither the Company nor any Guarantor has distributed or approved for distribution any Written Testing-the-Waters Communications.

 

(e)               the Incorporated Documents, when they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, and none of such documents, when they were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in (i) the Registration Statement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, and (ii) any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading;

 

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(f)                the Indenture has been duly and validly authorized by the Company, the Base Indenture has been duly executed and delivered by the Company and, upon execution and delivery of the Supplemental Indenture by the Company and assuming due execution and delivery by the Trustee, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles; and the Indenture has been duly qualified under the 1939 Act and conforms in all material respects to the description thereof in the Registration Statement, any Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any;

 

(g)               the Supplemental Indenture has been duly authorized by each Guarantor and, upon its execution and delivery by each Guarantor, will be a valid and binding agreement of such Guarantor, enforceable against such Guarantor in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles;

 

(h)               the Notes have been duly and validly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles, and the Notes will conform in all material respects to the description thereof in the Registration Statement, any Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any; the Guarantees have been duly authorized by each of the Guarantors, and, when the Notes have been issued and authenticated in the manner provided for in the Indenture and delivered to the Underwriters against payment of the consideration therefor in accordance with the terms hereof, will constitute valid and binding obligations of each of the Guarantors, in each case enforceable against each of the Guarantors in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles, and will be entitled to the benefits of the Indenture and the Guarantees will conform in all material respects to the description thereof in the Registration Statement, any Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any;

 

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(i)                 the Company has, and as of the time of purchase the Company will have, an authorized capitalization as set forth in the Registration Statement, any Prepricing Prospectus and the Prospectus (and any similar information, if any, contained in any Permitted Free Writing Prospectus); as of the date of this Agreement the Company has an outstanding capitalization as set forth in the Registration Statement, any Prepricing Prospectus and the Prospectus and as of the time of purchase there shall not have been any changes since the date of this Agreement in the Company’s outstanding capitalization, except for differences which are not material; all of the issued and outstanding common shares of beneficial interest of the Company have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of any preemptive or similar right;

 

(j)                 each of the Company and each Guarantor has been duly formed and is validly existing as a corporation, limited liability company, partnership or real estate investment trust, as the case may be, in good standing under the laws of the jurisdiction of its incorporation or formation, as the case may be, with the requisite corporate, trust, partnership or other power to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to execute and deliver this Agreement and to perform its obligations under, or as contemplated under, this Agreement;

 

(k)               each of the Company and each Guarantor is duly qualified and is in good standing in each jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the business, management, prospects, properties, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries (as defined herein), taken as a whole, whether or not arising in the ordinary course of business, or on the ability of the Company or the Guarantors to perform their respective obligations under this Agreement, the Indenture or the Securities (a “Material Adverse Effect”);

 

(l)                 the Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt of any other corporation or have any direct or indirect equity interest or ownership of long-term debt in any firm, partnership, joint venture, limited liability company, association or other entity except for (i) the Company’s subsidiaries (as defined in the Act) (the “Subsidiaries”) and (ii) the Company’s beneficial ownership of 10,696,658 shares of common stock of Five Star Senior Living Inc., each as described in the Registration Statement, the Prepricing Prospectus and the Prospectus. The Subsidiaries identified in Schedule D attached hereto (each, a “Significant Subsidiary”) are the only Subsidiaries of the Company that are significant subsidiaries (as such term is defined by Rule 1-02(w) of Regulation S-X) of the Company. Each Subsidiary has been duly incorporated or formed and is validly existing as a corporation or other entity, as the case may be, in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate, trust, partnership or other power to acquire and own, lease and operate its properties and to conduct its business, as described in the Registration Statement, the Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any; and each Subsidiary is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of the property requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a Material Adverse Effect. Each of the Significant Subsidiaries is duly qualified and in good standing to do business in the jurisdictions set forth below the name of such Significant Subsidiary on Schedule E attached hereto, such jurisdictions being the only jurisdictions in which the nature of its business or the ownership or leasing of the property requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a Material Adverse Effect. Except as otherwise stated in the Registration Statement, the Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, all of the issued and outstanding capital shares of each Subsidiary have been duly authorized and are validly issued, fully paid and non-assessable and are or will be owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding capital shares of any Subsidiary was issued in violation of preemptive or other similar rights of any securityholder of such Subsidiary;

 

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(m)             this Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors;

 

(n)               except as otherwise described in the Registration Statement, the Disclosure Package and the Prospectus, neither the Company nor any of the Subsidiaries is in breach or violation of, or in default under (and no event has occurred which with notice, lapse of time, or both would result in any breach or violation of, or constitute a default under), (i) its Declaration of Trust, charter or bylaws or other organizational documents, (ii) any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument to which the Company or any Subsidiary is subject or by which any of them or any of their properties is bound or affected or (iii) any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its or its Subsidiaries’ properties, except, in the case of clauses (ii) and (iii), for those breaches, violations or defaults which, individually or in the aggregate, would not have a Material Adverse Effect;

 

(o)               the issuance by the Company of the Notes, the issuance by the Guarantors of the Guarantees, the compliance by the Company and the Guarantors with all of the provisions of this Agreement, the execution, delivery and performance by the Company and the Guarantors of this Agreement, and the consummation of the transactions contemplated herein (including, without limitation, the application of the net proceeds of the offering by the Company as described in the Disclosure Package and the Prospectus) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon the Securities or any property or assets of the Company or the Subsidiaries pursuant to (i) the provisions of the Declaration of Trust or the bylaws of the Company or any Subsidiary or any of the Company’s or any Subsidiary’s other organizational documents, (ii) any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the property or assets of the Company or any Subsidiary is subject, or (iii) any applicable laws or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its or its Subsidiaries’ properties, other than, in the case of clauses (ii) and (iii), as would not, individually or in the aggregate, have a Material Adverse Effect;

 

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(p)               no approval, authorization, consent or order of or filing with any federal, state or local or foreign governmental or regulatory commission, board, body, authority or agency or with the Nasdaq, or approval of the shareholders of the Company, is required in connection with the issuance and sale of the Securities or the consummation by the Company and the Guarantors of the transactions as contemplated hereby (including, without limitation, the application of the net proceeds of the offering by the Company as described in the Prepricing Prospectus and the Prospectus), other than registration of the Notes under the Act, which has been effected, the qualification of the Indenture under the 1939 Act, which has been effected, and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Notes are being offered by the Underwriters;

 

(q)               no person has the right, contractual or otherwise, to cause the Company to register under the Act any securities of the Company as a result of the filing or effectiveness of the Registration Statement or the sale of Securities contemplated thereby, except for such rights as have been complied with or waived;

 

(r)                Ernst & Young LLP, whose report on the consolidated financial statements of the Company and the Subsidiaries was filed with the Commission as part of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and is incorporated by reference in the Registration Statement, the Prepricing Prospectus, the Prospectus and, if applicable, any Permitted Free Writing Prospectuses, are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board;

 

(s)                all legal or governmental proceedings, affiliate or other related party transactions, off-balance sheet transactions (including, without limitation, transactions related to, and the existence of, “variable interest entities” within the meaning of the Variable Interest Entity Topic of the FASB Accounting Standards Codification), contracts, leases or documents of a character required to be described in the Registration Statement, the Prepricing Prospectus, the Prospectus or any Incorporated Document, and all documents required to be filed as an exhibit to the Registration Statement, any Prepricing Prospectus, the Prospectus or any Incorporated Document, have been so described or filed or will be filed prior to the time of purchase as required;

 

(t)                 except as otherwise described in the Registration Statement, the Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Subsidiaries is a party or of which any of the Company’s or any of the Subsidiaries’ properties or assets is the subject, the result of which would, individually or in the aggregate, have a Material Adverse Effect, and, to the Company’s and the Guarantors’ knowledge, no such proceedings are threatened or contemplated, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the result of which would, individually or in the aggregate, have a Material Adverse Effect. To the Company’s and the Guarantors’ knowledge, there are no legal or governmental proceedings pending to which any lessee, sublessee or operator of any property of the Company or any Subsidiary or portion thereof is a party, the result of which would, individually or in the aggregate, have a Material Adverse Effect, and no such proceedings are being threatened or contemplated, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus and the result of which would, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of the Subsidiaries has received from any governmental authority notice of any violation of any local, state or federal law, rule or regulation (including without limitation any such law, rule or regulation applicable to the health care industry (“Health Care Laws”) or relating to human health or safety or the environment or any hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”)), except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the result of which would, individually or in the aggregate, have a Material Adverse Effect, and to the Company’s and the Guarantors’ knowledge, there is no such violation, or any occurrence or circumstance that would give rise to a claim under or pursuant to any local, state or federal law, rule or regulation (including without limitation any Health Care Laws or Environmental Laws), except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, which would, individually or in the aggregate, have a Material Adverse Effect. To the Company’s and the Guarantors’ knowledge, there is no violation of any local, state or federal law, rule or regulation (including without limitation Health Care Laws and Environmental Laws) by any person from whom the Company or any of the Subsidiaries acquired any of its properties (a “seller”), or any lessee, sublessee or operator of any of their respective properties or any part thereof, the result of which would, individually or in the aggregate, have a Material Adverse Effect, and to the Company’s and the Guarantors’ knowledge, there is no such violation, or any occurrence or circumstance that would give rise to a claim against a seller, lessee, sublessee or operator under or pursuant to any local, state or federal law, rule or regulation (including without limitation any Health Care Laws or Environmental Laws), which would, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus. Neither the Company nor any of the Subsidiaries has received from any governmental authority any written notice of any condemnation of or zoning change affecting the properties or any part thereof of the Company or any of the Subsidiaries that, individually or in the aggregate, would have a Material Adverse Effect and neither the Company nor any of the Guarantors knows of any such condemnation or zoning change which is threatened and which if consummated would, individually or in the aggregate, have a Material Adverse Effect. To the Company’s and the Guarantors’ knowledge, no seller, lessee, sublessee or operator of any property of the Company or any of the Subsidiaries, or portion thereof, has received from any governmental authority any written notice of any condemnation of or zoning change affecting the Properties (as defined in Section 3(u) below) or any part thereof of the Company or any of the Subsidiaries that, individually or in the aggregate, would have a Material Adverse Effect;

 

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(u)               as of the respective dates at which such information is given, each of the Company and the Subsidiaries has good and marketable fee or leasehold title to the properties disclosed in the Registration Statement, the Disclosure Package and the Prospectus as being owned or ground leased by them (the “Properties”), except where the failure to hold such title would not, individually or in the aggregate, have a Material Adverse Effect; and the Properties are free and clear of all liens, encumbrances, claims, mortgages, deeds of trust, restrictions, security interests and defects (“Property Encumbrances”), except for: (i) the leasehold interests of lessees (and others claiming interests by, through or under such leasehold interests) in the Company’s and the Subsidiaries’ properties (the “Leases”), (ii) any other Property Encumbrances that would not, individually or in the aggregate, have a Material Adverse Effect and (iii) those Property Encumbrances set forth in the Registration Statement, the Disclosure Package and the Prospectus. All Property Encumbrances on or affecting the properties of the Company or any of the Subsidiaries which are required to be disclosed in the Registration Statement, the Disclosure Package and the Prospectus are disclosed therein. Except where it would not individually or in the aggregate have a Material Adverse Effect, each of the Leases pertaining to the properties of the Company or any of the Subsidiaries has been duly authorized by the Company or one of the Subsidiaries, as applicable, and is a valid and binding agreement of the Company or one of the Subsidiaries, as applicable, and, to the Company’s and the Guarantors’ knowledge, each other party thereto, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles. To the Company’s and the Guarantors’ knowledge, no lessee of any portion of any of the Properties of the Company or any of the Subsidiaries is in default under its Lease and there is no event which, but for the passage of time or the giving of notice or both, would constitute a default under any such Lease, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus and except for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect;

 

(v)               the Company and each of the Subsidiaries and, to the Company’s or the Guarantors’ knowledge, each of the operators, lessees or sublessees of any property or portion thereof of the Company or any of the Subsidiaries have such permits, licenses, approvals, certificates, franchises and authorizations of governmental or regulatory authorities (“permits”), including, without limitation, under any Health Care Laws or Environmental Laws, as are necessary in the case of each such party to acquire and own, lease or operate its properties and to conduct its business, except where the failure to obtain such permits would not individually or in the aggregate have a Material Adverse Effect; except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company and each of the Subsidiaries and, to the Company’s or the Guarantors’ knowledge, each of the lessees, sublessees or operators of any property or portion thereof of the Company or any of the Subsidiaries are in compliance with all of their obligations with respect to such permits and, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or result in any other impairment of the rights of the holder of any such permit, except where the failure to comply, fulfill or perform, or the revocation, termination or impairment, would not, individually or in the aggregate, have a Material Adverse Effect; and, except as described in the Registration Statement, the Disclosure Package and the Prospectus, such permits contain no restrictions that are burdensome to the Company and the Subsidiaries, taken as a whole, and that would, individually or in the aggregate, have a Material Adverse Effect;

 

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(w)             the financial statements, together with the related schedules and notes, forming a part of the Registration Statement, any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, comply as to form in all material respects with the requirements of the Act and the Exchange Act and present fairly the consolidated financial position of the Company and the Subsidiaries, or of the other entities identified therein, as applicable, as of the dates indicated and the consolidated results of operations and cash flows of the Company and the Subsidiaries, or such other entities, for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved. Any pro forma financial statements and other pro forma financial data included or incorporated by reference in the Registration Statement, any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus comply as to form in all material respects with the applicable accounting requirements of Regulation S-X of the Act, and the assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the transactions or circumstances described therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements. Any summarized financial information included or incorporated by reference in the Registration Statement, any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus complies as to form in all material respects with the applicable accounting requirements of Regulation S-X of the Act. To the extent applicable, all disclosures contained in the Registration Statement, any Prepricing Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document regarding Non-GAAP Financial Measures (as such term is defined by the rules and regulations of the Commission) comply, in all material respects, with Regulation G of the Exchange Act and, if applicable, Item 10 of Regulation S-K. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable interest entities” within the meaning of the Variable Interest Entity Topic of the FASB Accounting Standards Codification), not disclosed in the Registration Statement, each Prepricing Prospectus and the Prospectus. The other financial and statistical data set forth in the Registration Statement, any Prepricing Prospectus, the Prospectus and any Permitted Free Writing Prospectus are accurately presented and prepared on a basis consistent with the financial statements and books and records of the Company. There are no financial statements (historical or pro forma) that are required to be included in the Registration Statement, any Prepricing Prospectus or the Prospectus that are not included as required;

 

(x)               subsequent to the respective dates as of which information is given in the Registration Statement, any Prepricing Prospectus, the Prospectus and any Permitted Free Writing Prospectus, in each case excluding any amendments or supplements to the foregoing made after the execution of this Agreement, there has not been (i) any material adverse change, or any prospective material adverse change, in the business, properties, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business (“Material Adverse Change”), (ii) any transaction which is material to the Company or the Subsidiaries, (iii) any obligation, direct or contingent, which is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or the Subsidiaries, (iv) any material change in the outstanding shares of beneficial interest or material increase in the outstanding indebtedness of the Company or the Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the shares of beneficial interest of the Company or a dividend distribution of any kind on any class of its shares of beneficial interest (other than dividends or distributions from wholly-owned subsidiaries of the Company) other than (A) quarterly dividends, declared, paid or made and (B) the issuance of common shares of beneficial interest to the trustees and officers of the Company and directors, officers and employees of The RMR Group LLC, the Company’s manager (“RMR LLC”), pursuant to the Company’s Equity Compensation Plan filed as an exhibit to the Registration Statement. None of the Company nor the Subsidiaries has any material contingent obligation which is not disclosed in the Registration Statement, the Disclosure Package and the Prospectus;

 

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(y)               each of the Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are customary in the business in which they are engaged, except as described in the Registration Statement, the Disclosure Package and the Prospectus. Except as would not, individually or in the aggregate, have a Material Adverse Effect, all policies of insurance insuring the Company and the Subsidiaries or any of their businesses, assets, employees, officers, directors and trustees are in full force and effect, and the Company and the Subsidiaries are in compliance with the terms of such policies in all material respects. Except as would not, individually or in the aggregate, have a Material Adverse Effect, there are no claims by the Company or any of the Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause;

 

(z)               except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Company nor any of the Subsidiaries has either sent or received any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in, or filed as an exhibit to, the Registration Statement, any Prepricing Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document, and no such termination or non-renewal has been threatened by the Company or any of the Subsidiaries or any other party to any such contract or agreement;

 

(aa)            neither the Company nor any of the Subsidiaries nor any of their respective affiliates has taken, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities;

 

(bb)           the Company and the Subsidiaries have not sustained since the date of the latest audited financial statements included in the Registration Statement, any Prepricing Prospectus and the Prospectus any loss or interference with their businesses from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as disclosed in the Disclosure Package and the Prospectus or other than any loss or interference, which would not individually or in the aggregate have a Material Adverse Effect;

 

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(cc)            the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly present the information called for in all material respects and are pre-pared in accordance with the Commission's rules and guidelines applicable thereto;

 

(dd)           the Company and each of the Subsidiaries have established and maintain, and the Company evaluates its, effective “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s principal executive officers and its principal financial officers by others within those entities, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Company’s auditors and the Audit Committee of the Board of Trustees of the Company have been advised of: (i) any significant deficiencies in the design or operation of the Company’s internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize, and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting; any material weaknesses in the Company’s internal control over financial reporting have been identified for the Company’s auditors; and since the date of the most recent evaluation of such disclosure controls and procedures and internal controls, there has been no significant change in the Company’s internal control over financial reporting or in other factors that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; the principal executive officers (or their equivalents) and principal financial officers (or their equivalents) of the Company have made all certifications required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and any related rules and regulations promulgated by the Commission, and the statements contained in any such certification in the Incorporated Documents filed since January 1, 2018 are complete and correct as of the dates such statements were made; each of the Company and its trustees and officers is otherwise in compliance in all material respects with all applicable effective provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission and the Nasdaq promulgated thereunder;

 

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(ee)            the Company and the Subsidiaries have filed all federal, state, local and foreign tax returns and tax forms required to be filed, except where the failure to file such return or form would not, individually or in the aggregate, have a Material Adverse Effect. Such returns and forms are complete and correct in all material respects, and all taxes shown on such returns or otherwise assessed that are due or payable have been paid, except such taxes as are being contested in good faith and as to which adequate reserves have been provided. All payroll withholdings required to be made by the Company and the Subsidiaries with respect to employees have been made except where the failure to fulfill or perform, would not, individually or in the aggregate, have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company and the Subsidiaries in respect of any tax liability for any year not finally determined are adequate to meet any assessments or reassessments for additional taxes. There have been no tax deficiencies asserted and, to the Company’s or the Guarantors’ knowledge, no tax deficiency might be reasonably asserted or threatened against the Company and/or the Subsidiaries that would individually or in the aggregate have a Material Adverse Effect;

 

(ff)              the Company has provided you with true, correct and complete copies of all documentation pertaining to any extension of credit in the form of a personal loan made, directly or indirectly, by the Company to any trustee or executive officer of the Company, or to any family member or affiliate of any trustee or executive officer of the Company; and since July 30, 2002, the Company has not, directly or indirectly, including through any Subsidiary: (i) extended credit, arranged to extend credit, or renewed any extension of credit, in the form of a personal loan, to or for any trustee or executive officer of the Company, or to or for any family member or affiliate of any trustee or executive officer of the Company; or (ii) made any material modification, including any renewal thereof, to any term of any personal loan to any trustee or executive officer of the Company, or any family member or affiliate of any trustee or executive officer, which loan was outstanding on July 30, 2002;

 

(gg)           neither the Company nor any of the Subsidiaries nor, to the Company’s or the Guarantors’ knowledge, any employee or agent of the Company or any Subsidiary has made any payment of funds of the Company or any Subsidiary or received or retained any funds in violation of any law, rule or regulation, which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement, any Prepricing Prospectus, the Prospectus or any Incorporated Document;

 

(hh)           the Company meets the requirements for qualification and taxation as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”);

 

(ii)              neither the Company nor any of its Subsidiaries is, and at no time during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities will be, and, after giving effect to the offering and sale of the Securities and the application of the proceeds as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”, will be an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);

 

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(jj)              in accordance with Conduct Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Securities have been registered with the Commission on Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;

 

(kk)           neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company or the Guarantors, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of the Subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of the Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any domestic government official, “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA or any applicable non-U.S. anti-bribery statute or regulation; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, such foreign official or employee; and the Company and the Subsidiaries and, to the knowledge of the Company or the Guarantors, the Company’s affiliates have conducted their respective businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;

 

(ll)              the operations of the Company and the Subsidiaries are, and have been conducted at all times, in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company or the Guarantors, threatened;

 

(mm)      neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company or the Guarantors, after due inquiry, any director, officer, agent, employee, affiliate or person acting on behalf of the Company or any of the Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of the Subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory, that currently is the subject to any Sanctions, or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of such Sanctions; and

 

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(nn)        except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (i) to the knowledge of the Company or the Guarantors, there has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s or the Subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company or the Subsidiaries, and any such data processed or stored by third parties on behalf of the Company or the Subsidiaries), equipment or technology (collectively, “IT Systems and Data”); (ii) neither the Company nor any of the Subsidiaries has been notified of, and has no knowledge of any event or condition that would result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data and (iii) the Company and the Subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. The Company and the Subsidiaries are presently in compliance in all material respects with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.

 

In addition, any certificate signed by any officer of the Company, any Guarantor, or any of the other Subsidiaries and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Securities shall be deemed to be a representation and warranty by the Company, such Guarantor or such Subsidiary, as the case may be, as to matters covered thereby, to each Underwriter.

 

4.                  Certain Covenants of the Company and the Guarantors.

 

(a)               The Company and the Guarantors, jointly and severally, agree with each Underwriter:

 

(i)                 to furnish such information as may be required and otherwise to cooperate in qualifying the Securities for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided that neither the Company nor any Guarantor shall be required to qualify as a foreign corporation, limited liability company, partnership or trust, as the case may be, or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Securities); and to promptly advise you of the receipt by the Company or any Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose;

 

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(ii)                 to make available to the Underwriters in New York City as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule), in connection with the sale of the Securities, a prospectus beyond the nine-month period referred to in Section 10(a)(3) of the Act in connection with the sale of the Securities, the Company will prepare promptly upon request, but at its expense, such amendment or amendments to the Registration Statement and such prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;

 

(iii)                 to advise you promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Registration Statement, any Prepricing Prospectus or the Prospectus, including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which you shall object in writing;

 

(iv)                 to file or cause to be filed promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of the Securities, and to promptly notify you of such filing;

 

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(v)                 to furnish to you and, upon request, to each of the other Underwriters for a period of three years from the date of this Agreement (i) copies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) upon request, copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed, and (iv) such other information as you may reasonably request regarding the Company or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; provided, however, that in no case shall the Company or any Guarantor be required to furnish materials pursuant to this paragraph which are filed and publicly accessible via EDGAR or any successor database;

 

(vi)                to advise the Underwriters promptly of the happening of any event known to the Company or the Guarantors within the time during which a Prospectus relating to the Securities is required under the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any sale of the Securities, which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;

 

(vii)               if at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 6 hereof.

 

(viii)              that the Company will make generally available to its security holders as soon as reasonably practicable, but not later than 90 days after the close of the period covered thereby, an earning statement of the Company (in form complying with the provisions of Rule 158 of the Act) covering a period of at least twelve months beginning not later than the first day of the Company’s fiscal quarter next following the effective date of the Registration Statement. “Earning statement”, “make generally available” and “effective date” will have the meanings contained in Rule 158 of the Act;

 

(ix)                to furnish or make available to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, shareholders’ equity and of cash flow of the Company) for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent registered public accountants;

 

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(x)                  to furnish to you three conformed copies of each of the Original Registration Statement and Post-Effective Amendment No. 1, as filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient conformed copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;

 

(xi)                 to furnish to you as early as practicable prior to the time of purchase, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(d) hereof;

 

(xii)                that the Company will apply the net proceeds from the sale of the Securities, in all material respects, in the manner set forth under the caption “Use of proceeds” in the Disclosure Package and the Prospectus;

 

(xiii)               to furnish to you, before filing with the Commission subsequent to the Effective Time and during the period referred to in paragraph (vi) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;

 

(xiv)               to pay all expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Securities including any transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iii) the word processing and/or printing of this Agreement, any Agreement Among Underwriters and any dealer agreements and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (iv) the qualification of the Securities for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriters, not to exceed $10,000) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any filing for review of the public offering of the Securities by FINRA (including the legal fees and filing fees and other disbursements of counsel to the Underwriters with respect thereto), (vi) the fees and disbursements of the Company’s and the Guarantors’ counsel, accountants and other advisors or agents, as well as the fees and disbursements of the Trustee and its counsel, (vii) the approval of the Securities by DTC for “book-entry” transfer, (viii) the rating of the Securities by rating agencies, (ix) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Securities to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (x) the performance of the Company’s and the Guarantors’ other obligations hereunder;

 

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(xv)                to comply with Rule 433(g) under the Act;

 

(xvi)               not to offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or to publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the majority of the Representatives for a period beginning at the date of this Agreement and ending at the later of 30 days from the date hereof or the lifting of trading restrictions by the Representatives. For the avoidance of doubt, this covenant does not prohibit (1) draws under the Company’s existing $1.0 billion aggregate principal amount (subject to increase to $2.0 billion under the circumstances provided therein) credit facility which matures in 2022 or any refinancing thereof with another revolving credit facility, (2) the increase of the Company’s existing $200.0 million aggregate principal amount term loan which matures in 2022 to $400.0 million or (3) the incurrence or issuance of any secured debt, whether or not securitized, including in each case any related directly or indirect offer, sale, contract to sell, pledge or other disposition or filing or any public disclosure related thereto;

 

(xvii)              that the Company will use its best efforts to continue to qualify as a REIT under Sections 856 through 860 of the Code;

 

(xviii)             prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary, or the offering of the Securities, without your prior consent; and

 

(xix)               not, at any time at or after the execution of this Agreement, to, directly or indirectly, offer or sell any Notes by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Prospectus.

 

(b)                 Each Underwriter represents, severally and not jointly, that it has not and will not use any “free writing prospectus,” as defined in Rule 405 under the Securities Act, required to be filed with the Commission by the Company, any Guarantor or any Underwriter pursuant to Rule 433 under the Act, other than any free writing prospectus listed on Schedule C attached hereto or otherwise consented to by the Company.

 

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5.                 Reimbursement of Underwriters’ Expenses. If the Securities are not delivered for any reason other than the termination of this Agreement pursuant to clause (ii)(A), (C), (D) or (E) of the second paragraph of Section 7 hereof or pursuant to the last paragraph of Section 8 hereof or the default by one or more of the Underwriters in its or their respective obligations hereunder, the Company and the Guarantors, jointly and severally, shall, in addition to paying the amounts described in Section 4(a)(xiv) hereof, reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of their counsel.

 

6.                 Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors on the date hereof and at the time of purchase, the performance by the Company and the Guarantors of their obligations hereunder and to the following additional conditions precedent:

 

(a)               The Company shall furnish to you at the time of purchase an opinion of Sullivan & Worcester LLP, counsel for the Company and the Guarantors, addressed to the Underwriters, and dated the time of purchase with reproduced copies for each of the other Underwriters and in form satisfactory to Sidley Austin LLP, counsel for the Underwriters. In rendering their opinion as aforesaid, Sullivan & Worcester LLP may limit such opinion to matters of federal, Massachusetts and New York law and, as to matters governed by Maryland law, may rely upon the opinion, dated as of the time of purchase of Venable LLP delivered pursuant to Section 6(b) of this Agreement, and, as to matters governed by Indiana law, may rely upon the opinion, dated as of the time of purchase of Taft Stettinius & Hollister LLP delivered pursuant to Section 6(c) of this Agreement, provided that such reliance is expressly authorized by such opinion and a copy of such opinion is delivered to the Underwriters and is, in form and substance, satisfactory to the Underwriters and counsel for the Underwriters. In addition, in rendering such opinion, such counsel may state that their opinion with respect to the qualification of the Company and its Subsidiaries to do business in jurisdictions other than their respective jurisdiction of organization is based solely upon certificates to such effect issued by an appropriate official of the applicable jurisdictions.

 

(b)               The Company shall furnish to you at the time of purchase an opinion of Venable LLP, Maryland counsel of the Company, addressed to the Underwriters, and dated the time of purchase with reproduced copies for each of the other Underwriters and in form satisfactory to Sidley Austin LLP, counsel for the Underwriters.

 

(c)               The Company shall furnish to you at the time of purchase an opinion of Taft Stettinius & Hollister LLP, Indiana counsel of the Company, addressed to the Underwriters, and dated the time of purchase with reproduced copies for each of the other Underwriters and in form satisfactory to Sidley Austin LLP, counsel for the Underwriters.

 

(d)               You shall have received at the time of purchase an opinion of Sidley Austin LLP, counsel for the Underwriters, dated the time of purchase with respect to the sale of the Securities by the Company, the Registration Statement, the Prospectus and such other related matters as the Underwriters may require. In addition, Sidley Austin LLP may rely on the opinion of Venable LLP as to all matters of Maryland law.

 

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(e)               You shall have received from Ernst & Young LLP letters addressed to the Underwriters in the forms approved by the Representatives, and dated (i) the date of this Agreement, which letter shall cover, without limitation, the information in the Registration Statement, any Prepricing Prospectus, the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any, and the Prospectus and (ii) the time of purchase, which letter shall cover, without limitation, the information in the Registration Statement and the Prospectus, and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any.

 

(f)                No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall have been made to which you have objected in writing.

 

(g)               The Registration Statement shall have become effective, and the Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, no later than the second full business day after the date of this Agreement or such earlier time as required by the Act.

 

(h)               Prior to the time of purchase: (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Prepricing Prospectuses or the Prospectus, and no amendment or supplements thereto, shall contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

 

(i)                Between the time of execution of this Agreement and the time of purchase there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined for purposes of Section 3(a)(62) under the Exchange Act.

 

(j)                The Company will, at the time of purchase deliver to you a certificate of two of its executive officers to the effect that the representations and warranties of the Company and the Guarantors as set forth in this Agreement are true and correct as of such date, that the Company and the Guarantors have performed such of their obligations under this Agreement as are to be performed at or before the time of purchase and the conditions set forth in paragraphs (h) and (i) of this Section 6 have been met.

 

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(k)               The Company will at the time of purchase deliver to you a certificate signed by the Chief Financial Officer of the Company substantially in such form approved by you and counsel to the Underwriters, with respect to the Company’s compliance, both prior to and after giving effect to the transactions contemplated hereby (including, without limitation, the application of the net proceeds by the Company as described in the Prospectus), with the financial covenants set forth in the Company’s credit agreement and the Company’s supplemental indentures relating to its 6.75% Senior Notes due 2021, 4.75% Senior Notes due 2024, 4.75% Senior Notes due 2028, 5.625% Senior Notes due 2042 and 6.25% Senior Notes due 2046 and other agreements and instruments respecting outstanding material indebtedness of the Company and the Subsidiaries. The Company will also, at the time of purchase, deliver to you a certificate of its Chief Financial Officer, in the form set forth in Exhibit A hereto.

 

(l)                The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the time of purchase as you may reasonably request.

 

7.                 Effective Date of Agreement; Termination. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

 

The obligations of the several Underwriters hereunder shall be subject to termination in the absolute discretion of the Representatives if (i) since the time of execution of this Agreement or the earlier respective dates as of which information is given in the Registration Statement, any Prepricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there has been any Material Adverse Change, which would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package or the Prospectus, or (ii) since the time of execution of this Agreement, there shall have occurred: (A) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the NYSE American or the Nasdaq; (B) a suspension or material limitation in trading in the Company’s securities on the Nasdaq; (C) a general moratorium on commercial banking activities declared by either federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (D) an outbreak or escalation of hostilities or acts of terrorism involving the United States or a declaration by the United States of a national emergency or war; or (E) any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (D) or (E), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Registration Statement, any Disclosure Package or the Prospectus.

 

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If the Representatives elect to terminate this Agreement as provided in this Section 7, the Company and each other Underwriter shall be notified promptly in writing.

 

If the sale to the Underwriters of the Securities, as contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted under this Agreement or if such sale is not carried out because the Company or the Guarantors shall be unable to comply with any of the terms of this Agreement, the Company and the Guarantors shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 4(a)(xiv), 5 and 9 hereof), and the Underwriters shall be under no obligation or liability to the Company or the Guarantors under this Agreement (except to the extent provided in Section 10 hereof) or to one another hereunder.

 

8.                  Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if any Underwriter shall default in its obligation to take up and pay for the Notes to be purchased by it hereunder (otherwise than for reasons sufficient to justify the termination of this Agreement under the provisions of Section 7 hereof) and if the aggregate principal amount of Notes which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10% of the total aggregate principal amount of Notes , the non-defaulting Underwriters shall take up and pay for (in addition to the Notes they are obligated to purchase pursuant to Section 1 hereof) the Notes agreed to be purchased by all such defaulting Underwriters, as hereinafter provided. Such Notes shall be taken up and paid for by such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with the consent of each Underwriter so designated or, in the event no such designation is made, such Notes shall be taken up and paid for by all non-defaulting Underwriters pro rata in proportion to the aggregate principal amount of Notes set opposite the names of such non-defaulting Underwriters in Schedule A.

 

Without relieving any defaulting Underwriter from its obligations hereunder, the Company agrees with the non-defaulting Underwriters that it will not sell any Securities hereunder unless all of the Securities are purchased by the Underwriters (or by substituted Underwriters selected by you with the approval of the Company or selected by the Company with your approval).

 

If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or you shall have the right to postpone the time of purchase for a period not exceeding five business days in order that any necessary changes in the Prospectus and other documents may be effected.

 

The term Underwriter as used in this Agreement shall refer to and include any Underwriter substituted under this Section 8 with like effect as if such substituted Underwriter had originally been named in Schedule A.

 

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If the aggregate principal amount of Notes which the defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the aggregate principal amount of Notes which all Underwriters agreed to purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make arrangements within the five business day period stated above for the purchase of the entire aggregate principal amount of Notes which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of the Company to any non-defaulting Underwriter and without any liability on the part of any non-defaulting Underwriter to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

 

9.                   Indemnity and Contribution.

 

(a)                 The Company and each of the Guarantors, jointly and severally agree to indemnify, defend and hold harmless each Underwriter, its partners, affiliates, directors and officers, and any person who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, any such Underwriter or any such person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereto by the Company) or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning such Underwriter furnished in writing by or on behalf of such Underwriter through the Representatives to the Company expressly for use in, the Registration Statement or arises out of or is based upon any omission or alleged omission to state a material fact in the Registration Statement in connection with such information, which material fact was not contained in such information and which material fact was required to be stated in such Registration Statement or was necessary to make such information not misleading or (ii) any untrue statement or alleged untrue statement of a material fact included in any Prospectus (the term Prospectus for the purpose of this Section 9 being deemed to include any Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement, the Prospectus and any amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus, in any Written Testing-the-Waters Communication, in any “issuer information” (as defined in Rule 433 under the Act) of the Company or in any Prospectus together with any combination of one or more of the Written Testing-the-Waters Communication and/or Permitted Free Writing Prospectuses, if any, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except, with respect to such Prospectus, Written Testing-the-Waters Communication or Permitted Free Writing Prospectus, insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning such Underwriter furnished in writing by or on behalf of such Underwriter through the Representatives to the Company expressly for use in, such Prospectus, Written Testing-the-Waters Communication or Permitted Free Writing Prospectus or arises out of or is based upon any omission or alleged omission to state a material fact in such Prospectus, Written Testing-the-Waters Communication or Permitted Free Writing Prospectus in connection with such information, which material fact was not contained in such information and which material fact was necessary in order to make the statements in such information, in the light of the circumstances under which they were made, not misleading.

 

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(b)               Each Underwriter severally agrees to indemnify, defend and hold harmless the Company and each of the Guarantors, each of their respective trustees, directors, managers, affiliates, officers, employees and agents and any person who controls the Company or any of the Guarantors within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any such person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information furnished in writing by or on behalf of such Underwriter through the Representatives to the Company expressly for use in the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Company), or arises out of or is based upon any omission or alleged omission to state a material fact in such Registration Statement in connection with such information, which material fact was not contained in such information and which material fact was required to be stated in such Registration Statement or was necessary to make such information not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information furnished in writing by or on behalf of such Underwriter through the Representatives to the Company expressly for use in, a Prospectus, a Written Testing-the-Waters Communication or a Permitted Free Writing Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in such Prospectus, Written Testing-the-Waters Communication or Permitted Free Writing Prospectus in connection with such information, which material fact was not contained in such information and which material fact was necessary in order to make the statements in such information, in the light of the circumstances under which they were made, not misleading.

 

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(c)               If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to the foregoing paragraphs (a) and (b) of this Section 9, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing of the institution of such Proceeding and such indemnifying party shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party, and payment of all fees and expenses; provided, however, that the omission to so notify such indemnifying party shall not relieve such indemnifying party from any liability which it may have to such indemnified party or otherwise. Such indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless the employment of such counsel shall have been authorized in writing by such indemnifying party in connection with the defense of such Proceeding or such indemnifying party shall not have, within a reasonable period of time in light of the circumstances, employed counsel to defend such Proceeding or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to or in conflict with those available to such indemnifying party (in which case such indemnifying party shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties, but such indemnifying party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such indemnifying party), in any of which events such fees and expenses shall be borne by such indemnifying party and paid as incurred (it being understood, however, that such indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding). No indemnifying party shall be liable for any settlement of any such Proceeding effected without the written consent of such indemnifying party but if settled with the written consent of such indemnifying party, such indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then the indemnifying party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 business days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, liability or failure to act, by or on behalf of such indemnified party.

 

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(d)               If the indemnification provided for in this Section 9 is unavailable to an indemnified party under subsections (a) and (b) of this Section 9 in respect of any losses, damage, expenses, liabilities or claims referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, bear to the aggregate public offering price of the Securities. The relative fault of the Company and the Guarantors on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company and the Guarantors on the one hand or by the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend or defending any Proceeding.

 

(e)               The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by such Underwriter and distributed to the public were offered to the public exceeds the amount of any damage which such Underwriter has otherwise been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are several in proportion to their respective underwriting commitments and not joint.

 

29

 

 

(f)                The indemnity and contribution agreements contained in this Section 9 and the covenants, warranties and representations of the Company and the Guarantors contained in this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter, its partners, directors, officers, employees or agents or any person (including each partner, officer, director, employee or agent of such person) who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the Company or any Guarantor or their respective trustees, directors, managers, officers, employees or agents or any person who controls the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and shall survive any termination of this Agreement or the issuance and delivery of the Notes. The Company and the Guarantors and each Underwriter agree promptly to notify each other of the commencement of any Proceeding against it or them (as the case may be) and, in the case of the Company and the Guarantors, against any of the Company’s or the Guarantors’ officers, trustees, directors, managers, employees or agents in connection with the issuance and sale of the Securities, or in connection with the Registration Statement, any Written Testing-the-Waters Communication, any Prepricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus.

 

10.              Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Facsimile: 704-410-0326, Attention: Transaction Management; Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013, Facsimile: 646-291-1469, Attention: General Counsel; PNC Capital Markets LLC, 300 Fifth Avenue, 10th Floor, Facsimile: 412-762-2760, Attention: Head of Corporate Securities; and RBC Capital Markets, LLC, Three World Financial Center, 200 Vesey Street, 8th Floor, New York, New York 10281, Facsimile: 212-428-6308, Attention: High Yield Capital Markets, with a copy to Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019, Attention: Bartholomew A. Sheehan, Esq.; and if to the Company or the Guarantors, shall be sufficient in all respects if delivered or sent to the Company or the Guarantors at the offices of the Company at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458, Attention: Richard W. Siedel, Jr., Chief Financial Officer and Treasurer, with a copy to Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts 02109, Attention: Howard E. Berkenblit, Esq.

 

11.              Governing Law; Construction. This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement (a “Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws of the State of New York. The Section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.

 

30

 

 

12.              Submission to Jurisdiction. Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and you, the Company and the Guarantors consent to the jurisdiction of such courts and personal service with respect thereto. The Company and each Guarantor hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this Agreement is brought by any third party against an Underwriter or any indemnified party. Each of the Underwriters, the Company and each of the Guarantors (on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and affiliates) waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company and the Guarantors, jointly and severally, agree that a final judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Company and the Guarantors, and may be enforced in any other courts to the jurisdiction of which the Company or the applicable Guarantor is or may be subject, by suit upon such judgment.

 

13.              Parties at Interest. The Agreement herein set forth has been and is made solely for the benefit of the Underwriters, the Company, the Guarantors and, to the extent provided in Section 9 hereof, the controlling persons, directors, managers and officers and, if applicable, trustees referred to in such Section, and their respective successors, assigns, heirs, personal representatives and executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.

 

14.              Information Furnished by the Underwriters. The statements set forth in (i) the last sentence of the fourth paragraph, (ii) the fifth paragraph, (iii) the first, second, third and fourth sentences of the ninth paragraph and (iv) the fifteenth paragraph under “Underwriting (Conflicts of Interest)” in the Prospectus Supplement, constitute the only information furnished by or on behalf of the Underwriters as such information is referred to in Sections 3 and 9 hereof.

 

15.              No Fiduciary Relationship. The Company and the Guarantors hereby acknowledge that the Underwriters are acting solely as underwriters in connection with the purchase and sale of the Securities. The Company and the Guarantors further acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis, and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, the Guarantors or their respective management, stockholders or creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company and the Guarantors, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company and each Guarantor hereby confirms its understanding and agreement to that effect. The Company, each Guarantor and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions and that any opinions or views expressed by the Underwriters to the Company or the Guarantors regarding such transactions, including, but not limited to, any opinions or views with respect to the price or market for the Company’s securities, do not constitute advice or recommendations to the Company. The Company, each Guarantor and the Underwriters agree that the Underwriters are acting as principals and not as the agents or fiduciaries of the Company or the Guarantors and the Underwriters have not assumed and will not assume any advisory responsibility in favor of the Company or the Guarantors with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether the Underwriters have advised or are currently advising the Company or the Guarantors on other matters). The Company and the Guarantors hereby waive and release, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any breach or alleged breach of any fiduciary, advisory or similar duty to the Company and the Guarantors in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.

 

31

 

 

16.              Counterparts. This Agreement may be signed by the parties in one or more counterparts that together shall constitute one and the same agreement among the parties. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, the Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “.pdf,” “.tif” or “.jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

 

17.              Recognition of the U.S. Special Resolution Regimes.

 

(a)              In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)              In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

32

 

 

For purposes of this Section 17 a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

18.              Successors and Assigns. This Agreement shall be binding upon the Underwriters and the Company, the Guarantors, and their respective successors and assigns and any successor or assign of any substantial portion of the Company’s, the Guarantors’ and any of the Underwriters’ respective businesses and/or assets.

 

19.              Compliance with USA PATRIOT Act. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Guarantors, which information may include the name and addresses of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

 

THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING DIVERSIFIED HEALTHCARE TRUST, DATED SEPTEMBER 20, 1999, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF DIVERSIFIED HEALTHCARE TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, DIVERSIFIED HEALTHCARE TRUST. ALL PERSONS DEALING WITH DIVERSIFIED HEALTHCARE TRUST, IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF DIVERSIFIED HEALTHCARE TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows.]

 

33

 

 

If the foregoing correctly sets forth the understanding among the Company, the Guarantors and the Underwriters, please so indicate in the space provided below for the purpose, whereupon this letter and your acceptance shall constitute a binding agreement between the Company, the Guarantors and the Underwriters severally.

 

  Very truly yours,
     
  DIVERSIFIED HEALTHCARE TRUST
   
  By: /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title:   Chief Financial Officer and Treasurer

 

Signature Page to Underwriting Agreement

 

   
   

 

  CCC ALPHA INVESTMENTS TRUST
  CCC DELAWARE TRUST
  CCC FINANCING I TRUST
  CCC INVESTMENTS I, L.L.C.
  CCC LEISURE PARK CORPORATION
  CCC PUEBLO NORTE TRUST
  CCC RETIREMENT PARTNERS TRUST
  CCC RETIREMENT TRUST
  CCDE SENIOR LIVING LLC
  CCOP SENIOR LIVING LLC
  CRESTLINE VENTURES LLC
  CSL GROUP, INC.
  DHC HOLDINGS LLC
  ELLICOTT CITY LAND I, LLC
  HRES1 PROPERTIES TRUST
  HRES2 PROPERTIES TRUST
  MSD POOL 1 LLC
  MSD POOL 2 LLC
  O.F.C. CORPORATION
  SNH 30 NEWCROSSING INC.
  SNH AL AIMO II, INC.
  SNH AL AIMO TENANT II, INC.
  SNH AL AIMO TENANT, INC.
  SNH AL AIMO, INC.
  SNH AL CRIMSON TENANT INC.
  SNH AL CUMMING LLC
  SNH AL CUMMING TENANT LLC
  SNH AL GEORGIA HOLDINGS LLC
  SNH AL GEORGIA LLC
  SNH AL GEORGIA TENANT LLC
  SNH AL PROPERTIES LLC
  SNH AL PROPERTIES TRUST
  SNH AL TRS, INC.
  SNH AL WILMINGTON TENANT INC.
  SNH ALPHARETTA LLC
  SNH ALT LEASED PROPERTIES TRUST
  SNH AZ TENANT LLC
  SNH BAKERSFIELD LLC
  SNH BAMA TENANT LLC
  SNH BATON ROUGE (NORTH) LLC
  SNH BATON ROUGE (REALTORS) LLC
  SNH BLAINE INC.
  SNH BRFL PROPERTIES LLC
  SNH BRFL TENANT LLC
  SNH BRIDGEWATER LLC
  SNH CAL TENANT LLC

 

Signature Page to Underwriting Agreement

 

   
   

 

  SNH CALI TENANT LLC
  SNH CCMD PROPERTIES BORROWER LLC
  SNH CCMD PROPERTIES LLC
  SNH CCMD TENANT LLC
  SNH CHS PROPERTIES TRUST
  SNH CLEAR BROOK LLC
  SNH CLEAR CREEK PROPERTIES TRUST
  SNH CO TENANT LLC
  SNH CONCORD LLC
  SNH DEL TENANT LLC
  SNH DENHAM SPRINGS LLC
  SNH DERBY TENANT LLC
  SNH DURHAM LLC
  SNH FLA TENANT LLC
  SNH FM FINANCING LLC
  SNH FM FINANCING TRUST
  SNH GEORGIA TENANT LLC
  SNH GLENVIEW (PATRIOT) LLC
  SNH GP VALENCIA LLC
  SNH GRANITE GATE LANDS TENANT LLC
  SNH GRANITE GATE LANDS TRUST
  SNH GROVE PARK TENANT LLC
  SNH GROVE PARK TRUST
  SNH HARRISBURG LLC
  SNH IL JOPLIN INC.
  SNH IL PROPERTIES TRUST
  SNH INDEPENDENCE PARK LLC
  SNH INDY TENANT LLC
  SNH JACKSON LLC
  SNH KENT PROPERTIES LLC
  SNH LINCOLN TENANT LLC
  SNH LONGHORN TENANT LLC
  SNH LTF PROPERTIES LLC
  SNH MARYLAND HEIGHTS LLC
  SNH MASS TENANT LLC
  SNH MD TENANT LLC
  SNH MEDICAL OFFICE PROPERTIES LLC
  SNH MEDICAL OFFICE PROPERTIES TRUST
  SNH MEZZCO SAN ANTONIO LLC
  SNH MO TENANT LLC
  SNH MODESTO LLC
  SNH NC TENANT LLC
  SNH NEB TENANT LLC
  SNH NJ TENANT GP LLC
  SNH NJ TENANT LLC
  SNH NM TENANT LLC

 

Signature Page to Underwriting Agreement

 

   
   

 

  SNH NORTHWOODS LLC
  SNH NORTHWOODS TENANT LLC
  SNH NS PROPERTIES TRUST
  SNH OHIO TENANT LLC
  SNH OMISS TENANT LLC
  SNH PARKVIEW PROPERTIES TRUST
  SNH PENN TENANT LLC
  SNH PHOENIX (COTTON) LLC
  SNH PLAQUEMINE LLC
  SNH PLFL PROPERTIES LLC
  SNH PLFL TENANT LLC
  SNH PRAIRIEVILLE LLC
  SNH PROJ LINCOLN TRS LLC
  SNH REDMOND PROPERTIES LLC
  SNH REIT IRVING LLC
  SNH REIT ROCKWALL LLC
  SNH REIT SAN ANTONIO LLC
  SNH REIT VICTORIA LLC
  SNH RMI FOX RIDGE MANOR PROPERTIES LLC
  SNH RMI JEFFERSON MANOR PROPERTIES LLC
  SNH RMI MCKAY MANOR PROPERTIES LLC
  SNH RMI NORTHWOOD MANOR PROPERTIES LLC
  SNH RMI OAK WOODS MANOR PROPERTIES LLC
  SNH RMI PARK SQUARE MANOR PROPERTIES LLC
  SNH RMI PROPERTIES HOLDING COMPANY LLC
  SNH RMI SMITH FARMS MANOR PROPERTIES LLC
  SNH RMI SYCAMORE MANOR PROPERTIES LLC
  SNH SC TENANT LLC
  SNH SE ASHLEY RIVER LLC
  SNH SE ASHLEY RIVER TENANT LLC
  SNH SE BARRINGTON BOYNTON LLC
  SNH SE BARRINGTON BOYNTON TENANT LLC
  SNH SE BURLINGTON LLC
  SNH SE BURLINGTON TENANT LLC
  SNH SE DANIEL ISLAND LLC
  SNH SE DANIEL ISLAND TENANT LLC
  SNH SE HABERSHAM SAVANNAH LLC
  SNH SE HABERSHAM SAVANNAH TENANT LLC
  SNH SE HOLLY HILL LLC
  SNH SE HOLLY HILL TENANT LLC
  SNH SE KINGS MTN LLC
  SNH SE KINGS MTN TENANT LLC
  SNH SE MOORESVILLE LLC
  SNH SE MOORESVILLE TENANT LLC
  SNH SE N. MYRTLE BEACH LLC
  SNH SE N. MYRTLE BEACH TENANT LLC

 

Signature Page to Underwriting Agreement

 

   
   

 

  SNH SE PROPERTIES LLC
  SNH SE PROPERTIES TRUST
  SNH SE SG LLC
  SNH SE SG TENANT LLC
  SNH SE TENANT 2 TRS, INC.
  SNH SE TENANT TRS, INC.
  SNH SOMERFORD PROPERTIES TRUST
  SNH ST. LOUIS LLC
  SNH TEANECK PROPERTIES LLC
  SNH TEANECK TENANT LLC
  SNH TELLICO TENANT LLC
  SNH TELLICO TRUST
  SNH TEMPE LLC
  SNH TENN TENANT LLC
  SNH TOTO TENANT LLC
  SNH TRS INC.
  SNH TRS LICENSEE HOLDCO LLC
  SNH VA TENANT LLC
  SNH VIKING TENANT LLC
  SNH WARD AVE. PROPERTIES I INC.
  SNH WELL PROPERTIES GA-MD LLC
  SNH WELL PROPERTIES TRUST
  SNH WILMINGTON LLC
  SNH WIS TENANT LLC
  SNH WY TENANT LLC
  SNH YONKERS PROPERTIES TRUST
  SNH YONKERS TENANT INC.
  SNH/CSL PROPERTIES TRUST
  SNH/LTA PROPERTIES GA LLC
  SNH/LTA PROPERTIES TRUST
  SNH/LTA SE HOME PLACE NEW BERN LLC
  SNH/LTA SE MCCARTHY NEW BERN LLC
  SNH/LTA SE WILSON LLC
  SPTGEN PROPERTIES TRUST
  SPTIHS PROPERTIES TRUST
  SPTMISC PROPERTIES TRUST
  SPTMNR PROPERTIES TRUST
  SPTMRT PROPERTIES TRUST
  SPTSUN II PROPERTIES TRUST

 

  By: /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title:   Chief Financial Officer and Treasurer

 

Signature Page to Underwriting Agreement

 

   

 

 

 

  LEXINGTON OFFICE REALTY TRUST
  SNH MEDICAL OFFICE REALTY TRUST
   
  By: /s/ Richard W. Siedel, Jr.
    Richard W. Siedel, Jr.,
    as Trustee and not individually
   
  CCC FINANCING LIMITED, L.P.
   
  By: CCC RETIREMENT TRUST,
  its general partner
   
  By: /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  CCC RETIREMENT COMMUNITIES II, L.P.
   
  By: CRESTLINE VENTURES LLC,
  its general partner
   
  By: /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  LEISURE PARK VENTURE LIMITED PARTNERSHIP
   
  By: CCC LEISURE PARK CORPORATION,
  its general partner
   
  By: /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer

 

Signature Page to Underwriting Agreement

 

 

 

 

  SNH NJ TENANT LP
   
  By: SNH NJ TENANT GP LLC,
  its general partner
   
   
  By:  /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  SNH VALENCIA LP
   
  By: SNH GP VALENCIA LLC,
  its general partner
   
   
  By: /s/ Richard W. Siedel, Jr.
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer

 

Signature Page to Underwriting Agreement

 

 

 

 

Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A.

 


WELLS FARGO SECURITIES, LLC
CITIGROUP GLOBAL MARKETS INC.
PNC CAPITAL MARKETS LLC
RBC CAPITAL MARKETS, LLC

 

 

WELLS FARGO SECURITIES, LLC   CITIGROUP GLOBAL MARKETS INC.
     
     
By  /s/ Andrew Konstand   By  /s/ Michael Tortora
Name: Andrew Konstand   Name: Michael Tortora
Title: Vice President   Title: Managing Director
     
     
PNC CAPITAL MARKETS LLC   RBC CAPITAL MARKETS, LLC
     
     
     
By /s/ Valerie Shadeck   By /s/ Charles D. Smith
Name: Valerie Shadeck   Name: Charles D. Smith
Title: Director   Title: Co-Head, U.S. Leveraged Finance

 

Signature Page to Underwriting Agreement

 

 

 

 

SCHEDULE A

 

Underwriters  Aggregate Principal
Amount
of Notes
 
Wells Fargo Securities, LLC  $240,000,000 
Citigroup Global Markets Inc.   150,000,000 
PNC Capital Markets LLC   150,000,000 
RBC Capital Markets, LLC   150,000,000 
BofA Securities, Inc.   50,000,000 
BMO Capital Markets Corp.   50,000,000 
Mizuho Securities USA LLC   50,000,000 
Regions Securities LLC   50,000,000 
SMBC Nikko Securities America, Inc.   50,000,000 
Samuel A. Ramirez & Company, Inc.   24,000,000 
Morgan Stanley & Co. LLC   12,000,000 
U.S. Bancorp Investments, Inc.   12,000,000 
UBS Securities LLC   12,000,000 
TOTAL  $1,000,000,000 

 

A-1

 

 

SCHEDULE B

 

Guarantors

 

Exact Name of Registrant as Specified in
its Charter
State or
Jurisdiction of
Incorporation
or Organization
Entity Type IRS
Employer
Identification
Number
CCC Alpha Investments Trust Maryland Business trust 35-2184937
CCC Delaware Trust Maryland Business trust 35-2184939
CCC Financing I Trust Maryland Business trust 01-6172425
CCC Financing Limited, L.P. Delaware Limited partnership 35-1904158
CCC Investments I, L.L.C. Delaware Limited liability company 35-1930956
CCC Leisure Park Corporation Delaware Corporation 52-1844142
CCC Pueblo Norte Trust Maryland Business trust 35-2184942
CCC Retirement Communities II, L.P. Delaware Limited partnership 35-1768887
CCC Retirement Partners Trust Maryland Business trust 35-2184933
CCC Retirement Trust Maryland Business trust 35-2184935
CCDE Senior Living LLC Delaware Limited liability company 52-2300864
CCOP Senior Living LLC Delaware Limited liability company 52-2257741
Crestline Ventures LLC Delaware Limited liability company 35-2184947
CSL Group, Inc. Indiana Corporation 61-0703072
DHC Holdings LLC Maryland Limited liability company 84-4879437
Ellicott City Land I, LLC Delaware Limited liability company 61-1429010
HRES1 Properties Trust Maryland Real estate investment trust 04-3461940
HRES2 Properties Trust Maryland Real estate investment trust 04-3461943
Leisure Park Venture Limited Partnership Delaware Limited partnership 52-1881181
Lexington Office Realty Trust Massachusetts Nominee trust 82-3686384
MSD Pool 1 LLC Maryland Limited liability company 20-1737344
MSD Pool 2 LLC Maryland Limited liability company 20-1738172
O.F.C. Corporation Indiana Corporation 35-1770620
SNH 30 Newcrossing Inc. Maryland Corporation 45-5575088
SNH AL AIMO II, Inc. Maryland Corporation 47-3533564
SNH AL AIMO Tenant II, Inc. Maryland Corporation 47-3533691
SNH AL AIMO Tenant, Inc. Maryland Corporation 47-3232437
SNH AL AIMO, Inc. Maryland Corporation 47-3588050
SNH AL Crimson Tenant Inc. Maryland Corporation 81-2029226
SNH AL Cumming LLC Maryland Limited liability company 38-3975418
SNH AL Cumming Tenant LLC Maryland Limited liability company 47-3232822
SNH AL Georgia Holdings LLC Maryland Limited liability company 36-4814035
SNH AL Georgia LLC Maryland Limited liability company 37-1787931
SNH AL Georgia Tenant LLC Maryland Limited liability company 47-3232887
SNH AL Properties LLC Maryland Limited liability company 35-2537526
SNH AL Properties Trust Maryland Real estate investment trust 47-3602298
SNH AL TRS, Inc. Maryland Corporation 47-3232299
SNH AL Wilmington Tenant Inc. Maryland Corporation 81-1715921
SNH Alpharetta LLC Delaware Limited liability company N/A
SNH ALT Leased Properties Trust Maryland Real estate investment trust 55-6152955
SNH AZ Tenant LLC Maryland Limited liability company 84-2650512
SNH Bakersfield LLC Maryland Limited liability company 30-0862688
SNH BAMA Tenant LLC Maryland Limited liability company 84-2332713
SNH Baton Rouge (North) LLC Delaware Limited liability company N/A
SNH Baton Rouge (Realtors) LLC Delaware Limited liability company N/A
SNH Blaine Inc. Maryland Corporation 46-1279404
SNH BRFL Properties LLC Delaware Limited liability company 45-3020731

 

B-1

 

 

SNH BRFL Tenant LLC Delaware Limited liability company 45-3021105
SNH Bridgewater LLC Delaware Limited liability company N/A
SNH CAL Tenant LLC Maryland Limited liability company 84-1959191
SNH CALI Tenant LLC Delaware Limited liability company 45-3182581
SNH CCMD Properties Borrower LLC Delaware Limited liability company 45-3627062
SNH CCMD Properties LLC Delaware Limited liability company 45-3020816
SNH CCMD Tenant LLC Delaware Limited liability company 45-3021280
SNH CHS Properties Trust Maryland Real estate investment trust 36-4509761
SNH Clear Brook LLC Delaware Limited liability company N/A
SNH Clear Creek Properties Trust Maryland Real estate investment trust 27-6529264
SNH CO Tenant LLC Maryland Limited liability company 84-2993730
SNH Concord LLC Delaware Limited liability company N/A
SNH DEL Tenant LLC Maryland Limited liability company 84-2344739
SNH Denham Springs LLC Delaware Limited liability company N/A
SNH Derby Tenant LLC Maryland Limited liability company 84-2947330
SNH Durham LLC Delaware Limited liability company N/A
SNH FLA Tenant LLC Maryland Limited liability company 84-1979681
SNH FM Financing LLC Delaware Limited liability company 27-0467611
SNH FM Financing Trust Maryland Real estate investment trust 27-0445292
SNH Georgia Tenant LLC Maryland Limited liability company 84-2360584
SNH Glenview (Patriot) LLC Delaware Limited liability company N/A
SNH GP Valencia LLC Delaware Limited liability company N/A
SNH Granite Gate Lands Tenant LLC Maryland Limited liability company 82-2831131
SNH Granite Gate Lands Trust Maryland Real estate investment trust 82-2831350
SNH Grove Park Tenant LLC Maryland Limited liability company 82-2794877
SNH Grove Park Trust Maryland Real estate investment trust 82-2839495
SNH Harrisburg LLC Delaware Limited liability company 27-2432028
SNH IL Joplin Inc. Maryland Corporation 46-0687362
SNH IL Properties Trust Maryland Real estate investment trust 45-6562274
SNH Independence Park LLC Delaware Limited liability company 45-3833677
SNH INDY Tenant LLC Maryland Limited liability company 84-2314667
SNH Jackson LLC Delaware Limited liability company N/A
SNH Kent Properties LLC Maryland Limited liability company 45-5241913
SNH Lincoln Tenant LLC Maryland Limited liability company 84-2683425
SNH Longhorn Tenant LLC Maryland Limited liability company 84-2669103
SNH LTF Properties LLC Maryland Limited liability company 26-3093294
SNH Maryland Heights LLC Delaware Limited liability company N/A
SNH MASS Tenant LLC Maryland Limited liability company 84-1887611
SNH MD Tenant LLC Maryland Limited liability company 84-1986209
SNH Medical Office Properties LLC Delaware Limited liability company 43-2003888
SNH Medical Office Properties Trust Maryland Real estate investment trust 26-2639854
SNH Medical Office Realty Trust Massachusetts Nominee trust N/A
SNH MezzCo San Antonio LLC Delaware Limited liability company N/A
SNH MO Tenant LLC Maryland Limited liability company 84-4132291
SNH Modesto LLC Maryland Limited liability company 47-3544733
SNH NC Tenant LLC Maryland Limited liability company 84-2047364
SNH Neb Tenant LLC Maryland Limited liability company 84-2001187
SNH NJ Tenant GP LLC Maryland Limited liability company 84-1905394
SNH NJ Tenant LLC Maryland Limited liability company 84-1945671
SNH NJ Tenant LP Delaware Limited partnership 84-1921774
SNH NM Tenant LLC Maryland Limited liability company 84-2701729
SNH Northwoods LLC Maryland Limited liability company 82-2839754
SNH Northwoods Tenant LLC Maryland Limited liability company 82-2839879
SNH NS Properties Trust Maryland Real estate investment trust 20-0514077
SNH Ohio Tenant LLC Maryland Limited liability company 84-2655301
SNH OMISS Tenant LLC Maryland Limited liability company 84-2947009

 

B-2

 

 

SNH Parkview Properties Trust Maryland Real estate investment trust 82-2853811
SNH PENN Tenant LLC Maryland Limited liability company 84-2385774
SNH Phoenix (Cotton) LLC Delaware Limited liability company 37-1782635
SNH Plaquemine LLC Delaware Limited liability company N/A
SNH PLFL Properties LLC Delaware Limited liability company 45-3020897
SNH PLFL Tenant LLC Delaware Limited liability company 45-3021361
SNH Prairieville LLC Delaware Limited liability company N/A
SNH Proj Lincoln TRS LLC Maryland Limited liability company 84-1858890
SNH Redmond Properties LLC Maryland Limited liability company 46-1463109
SNH REIT Irving LLC Delaware Limited liability company N/A
SNH REIT Rockwall LLC Delaware Limited liability company N/A
SNH REIT San Antonio LLC Delaware Limited liability company N/A
SNH REIT Victoria LLC Delaware Limited liability company N/A
SNH RMI Fox Ridge Manor Properties LLC Maryland Limited liability company 26-3251471
SNH RMI Jefferson Manor Properties LLC Maryland Limited liability company 26-3251521
SNH RMI McKay Manor Properties LLC Maryland Limited liability company 26-3251604
SNH RMI Northwood Manor Properties LLC Maryland Limited liability company 26-3251559
SNH RMI Oak Woods Manor Properties LLC Maryland Limited liability company 26-3251646
SNH RMI Park Square Manor Properties LLC Maryland Limited liability company 26-3251709
SNH RMI Properties Holding Company LLC Maryland Limited liability company 26-3251326
SNH RMI Smith Farms Manor Properties LLC Maryland Limited liability company 26-3251766
SNH RMI Sycamore Manor Properties LLC Maryland Limited liability company 26-3251392
SNH SC Tenant LLC Maryland Limited liability company 84-2062280
SNH SE Ashley River LLC Delaware Limited liability company 45-1762788
SNH SE Ashley River Tenant LLC Delaware Limited liability company 45-1832353
SNH SE Barrington Boynton LLC Delaware Limited liability company 45-1763108
SNH SE Barrington Boynton Tenant LLC Delaware Limited liability company 45-1827601
SNH SE Burlington LLC Delaware Limited liability company 45-1735536
SNH SE Burlington Tenant LLC Delaware Limited liability company 45-1797166
SNH SE Daniel Island LLC Delaware Limited liability company 45-1762897
SNH SE Daniel Island Tenant LLC Delaware Limited liability company 45-1954435
SNH SE Habersham Savannah LLC Delaware Limited liability company 45-1797058
SNH SE Habersham Savannah Tenant LLC Delaware Limited liability company 45-1830101
SNH SE Holly Hill LLC Delaware Limited liability company 45-1796910
SNH SE Holly Hill Tenant LLC Delaware Limited liability company 45-1829966
SNH SE Kings Mtn LLC Delaware Limited liability company 45-1735619
SNH SE Kings Mtn Tenant LLC Delaware Limited liability company 45-1797302
SNH SE Mooresville LLC Delaware Limited liability company 45-1762682
SNH SE Mooresville Tenant LLC Delaware Limited liability company 45-1797417
SNH SE N. Myrtle Beach LLC Delaware Limited liability company 45-1763009
SNH SE N. Myrtle Beach Tenant LLC Delaware Limited liability company 45-1827421
SNH SE Properties LLC Delaware Limited liability company 45-2551031
SNH SE Properties Trust Maryland Real estate investment trust 45-6235237
SNH SE SG LLC Delaware Limited liability company 45-4350329
SNH SE SG Tenant LLC Delaware Limited liability company 45-4350382
SNH SE Tenant 2 TRS, Inc. Maryland Corporation 45-4419027
SNH SE Tenant TRS, Inc. Maryland Corporation 45-1675505
SNH Somerford Properties Trust Maryland Real estate investment trust 26-3092929
SNH St. Louis LLC Delaware Limited liability company N/A
SNH Teaneck Properties LLC Delaware Limited liability company 45-3020963

 

B-3

 

 

SNH Teaneck Tenant LLC Delaware Limited liability company 45-3021440
SNH Tellico Tenant LLC Maryland Limited liability company 82-2810980
SNH Tellico Trust Maryland Real estate investment trust 82-3350707
SNH Tempe LLC Delaware Limited liability company 36-4808742
SNH TENN Tenant LLC Maryland Limited liability company 84-2403386
SNH Toto Tenant LLC Maryland Limited liability company 84-1872935
SNH TRS Inc. Maryland Corporation 32-0068217
SNH TRS Licensee Holdco LLC Maryland Limited liability company 84-1854115
SNH VA Tenant LLC   Maryland Limited liability company 84-2015732
SNH Valencia LP Delaware Limited partnership 47-3300578
SNH Viking Tenant LLC Maryland Limited liability company 84-2372388
SNH Ward Ave. Properties I Inc. Maryland Corporation 45-5448537
SNH Well Properties GA-MD LLC Delaware Limited liability company 26-2938214
SNH Well Properties Trust Maryland Real estate investment trust 26-2938273
SNH Wilmington LLC Maryland Limited liability company 61-1757941
SNH WIS Tenant LLC   Maryland Limited liability company 84-2030681
SNH WY Tenant LLC Maryland Limited liability company 84-2299354
SNH Yonkers Properties Trust Maryland Real estate investment trust 45-6562289
SNH Yonkers Tenant Inc. Maryland Corporation 45-3038459
SNH/CSL Properties Trust Maryland Real estate investment trust 81-6107460
SNH/LTA Properties GA LLC Maryland Limited liability company 20-1878719
SNH/LTA Properties Trust Maryland Real estate investment trust 20-1878670
SNH/LTA SE Home Place New Bern LLC Delaware Limited liability company 45-1734759
SNH/LTA SE McCarthy New Bern LLC Delaware Limited liability company 45-1734853
SNH/LTA SE Wilson LLC Delaware Limited liability company 45-1734317
SPTGEN Properties Trust Maryland Real estate investment trust 04-3452343
SPTIHS Properties Trust Maryland Real estate investment trust 04-3450160
SPTMISC Properties Trust Maryland Real estate investment trust 04-3450894
SPTMNR Properties Trust Maryland Real estate investment trust 04-3450161
SPTMRT Properties Trust Maryland Real estate investment trust 04-3450155
SPTSUN II Properties Trust Maryland Real estate investment trust 04-3474405

 

B-4

 

 

SCHEDULE C

 

PERMITTED FREE WRITING PROSPECTUSES

 

Final Term Sheet, attached hereto as Annex A to this Schedule C.

 

C-1

 

 

Annex A to Schedule C

 

Filed Pursuant to Rule 433

Issuer Free Writing Prospectus

dated May 28, 2020

Registration No. 333-225831

Supplementing the Preliminary

Prospectus Supplement dated May 28, 2020

and Prospectus dated May 28, 2020

 

DIVERSIFED HEALTHCARE TRUST

 

PRICING TERM SHEET

 

Issuer:

 

Guarantors:

 

Diversified Healthcare Trust (the “Issuer”)

 

Certain of the Issuer’s direct and indirect subsidiaries as described in the Preliminary Prospectus Supplement referred to above (the “Preliminary Prospectus Supplement”) (the “Guarantors”)

 

Security: 9.750% Senior Notes due 2025 (the “Notes”)
Ranking: Senior Unsecured
Trade Date: May 28, 2020
Settlement Date: June 2, 2020 (T+3). It is expected that delivery of the Notes will be made against payment thereof on or about June 2, 2020, which will be the third business day following the trade date referred to above (the “trade date”) (such settlement cycle being herein referred to as “T + 3”). Pursuant to Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes on the trade date will be required, by virtue of the fact that the Notes initially will settle    T+3, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade the Notes on the trade date should consult their own advisor.
Use of Proceeds: The Issuer expects to use the net proceeds from this offering for general business purposes, including to repay its $250.0 million term loan and to reduce amounts outstanding under its revolving credit facility.
Principal Amount: $1,000,000,000

 

C-2

 

 

Gross Proceeds to Issuer: $1,000,000,000
Interest Payment Dates: June 15 and December 15, commencing December 15, 2020
Maturity Date: June 15, 2025
Record Dates: June 1 and December 1
Yield to Maturity: 9.750%
Coupon (Interest Rate): 9.750% per annum
Price to Public: 100.000% of principal amount of the Notes, plus accrued interest, if any, from June 2, 2020
Redemption Provisions:  
Optional Redemption: On and after June 15, 2022, in whole or from time to time in part, at the redemption prices set forth below (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but not including, the applicable redemption date, if redeemed during the 12-month period beginning on June 15 of the years set forth below:
   
    Date   Price    
    2022   104.875 %  
    2023   102.438 %  
    2024 and thereafter   100.000 %  
             
  Prior to June 15, 2022, in whole or from time to time in part, at a redemption price with a make-whole premium based on U.S. Treasury plus 50 basis points
   

Optional Redemption
with Equity Proceeds:

In addition, prior to June 15, 2022, up to 40% of the original aggregate principal amount of the Notes (including any additional Notes) using the net cash proceeds of certain equity offerings at a redemption price equal to 109.750% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the applicable redemption date, subject to the conditions stated in the Preliminary Prospectus Supplement.
   
Change of Control: Puttable at 101% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the applicable purchase date, upon the occurrence of certain change of control events described in the Preliminary Prospectus Supplement.
   
CUSIP / ISIN: 25525PAA5 / US25525PAA57
   
Denominations/Multiple: $2,000 / $1,000

 

C-3

 

 

Notice to Investors:

The following notice to investors is in addition to the notices to investors set forth under “Underwriting (Conflicts of Interest)” in the Preliminary Prospectus Supplement.

 

Notice to Prospective Investors in the United Kingdom

 

The communication of this pricing term sheet, the accompanying prospectus and any other document or materials relating to the issue of the Notes offered hereby is not being made, and such documents and/or materials have not been approved, by an authorized person for the purposes of section 21 of the United Kingdom’s Financial Services and Markets Act 2000, as amended (the “FSMA”). Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. The communication of such documents and/or materials as a financial promotion is only being made to those persons in the United Kingdom who have professional experience in matters relating to investments and who fall within the definition of investment professionals (as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Financial Promotion Order”)), or who fall within Article 49(2)(a) to (d) of the Financial Promotion Order, or who are any other persons to whom it may otherwise lawfully be made under the Financial Promotion Order (all such persons together being referred to as “relevant persons”). In the United Kingdom, the Notes offered hereby are only available to, and any investment or investment activity to which this pricing term sheet and the accompanying prospectus relate will be engaged in only with, relevant persons. Any person in the United Kingdom that is not a relevant person should not act or rely on this pricing term sheet, the accompanying prospectus or any of their contents

 

Any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) in connection with the issue or sale of the Notes may only be communicated or caused to be communicated in circumstances in which Section 21(1) of the FSMA does not apply to us or the guarantor.

 

All applicable provisions of the FSMA must be complied with in respect to anything done by any person in relation to the Notes in, from or otherwise involving the United Kingdom

 

 

C-4

 

 

Joint Book-Running Managers:

Wells Fargo Securities, LLC
Citigroup Global Markets Inc.

PNC Capital Markets LLC

RBC Capital Markets, LLC

   
Joint Lead Managers:

BofA Securities, Inc.

BMO Capital Markets Corp.

Mizuho Securities USA LLC

Regions Securities LLC

SMBC Nikko Securities America, Inc.

   
Co-Managers:

Samuel A. Ramirez & Company, Inc.

Morgan Stanley & Co. LLC

U.S. Bancorp Investments, Inc.

UBS Securities LLC

 

 

The Issuer and the Guarantors have filed a registration statement (including a prospectus dated May 28, 2020 and a preliminary prospectus supplement dated May 28, 2020) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the related preliminary prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the Issuer, the Guarantors and this offering. You may obtain these documents for free by visiting EDGAR on the SEC web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and preliminary prospectus supplement if you request it by calling Wells Fargo Securities, LLC toll-free at 1-800-645-3751, Citigroup Global Markets Inc. toll-free at 1-800-831-9146, PNC Capital Markets LLC toll-free at 1-855-881-0697 or RBC Capital Markets, LLC toll-free at 1-866-375-6829.

 

C-5

 

 

SCHEDULE D

 

Significant Subsidiaries

 

CSL Group, Inc.

HRES2 Properties Trust

Seaport Innovation LLC

SNH AL AIMO, Inc.

SNH AL Properties Trust

SNH Bridgewater LLC

SNH Fan Pier Holding Trust

SNH Fan Pier Inc.

SNH FM Financing LLC

SNH FM Financing Trust

SNH LTF Properties LLC

SNH Medical Office Properties Trust

SNH MEZ LLC

SNH Redmond Properties LLC

SNH Seaport LLC

SNH Well Properties Trust

SNH/CSL Properties Trust

SNH/LTA Properties Trust

SPTMNR Properties Trust

 

D-1

 

 

SCHEDULE E

 

Foreign Qualifications of CSL Group, Inc.

California

Florida

Kansas

Kentucky

New Jersey

Pennsylvania

 

Foreign Qualifications of HRES2 Properties Trust

Massachusetts

 

Foreign Qualifications of Seaport Innovation LLC

(none)

 

Foreign Qualifications of SNH AL AIMO, Inc.

Arkansas

Illinois

Missouri

Oregon

 

Foreign Qualifications of SNH AL Properties Trust

(none)

 

Foreign Qualifications of SNH Bridgewater LLC

New Jersey

 

Foreign Qualifications of SNH Fan Pier Holding Trust

(none)

 

Foreign Qualifications of SNH Fan Pier Inc.

(none)

 

Foreign Qualifications of SNH FM Financing LLC

Arizona

Florida

Georgia

Indiana

Kansas

Kentucky

Massachusetts

New Mexico

North Carolina

Ohio

Texas

Virginia

Wisconsin

 

E-1

 

 

Foreign Qualifications of SNH FM Financing Trust

(none)

 

Foreign Qualifications of SNH LTF Properties LLC

Georgia

Illinois

Nebraska

Texas

 

Foreign Qualifications of SNH Medical Office Properties Trust

California

Connecticut

District of Columbia
Florida

Kansas

Massachusetts

New York

Ohio

Pennsylvania

Rhode Island

South Carolina

Texas
Virginia

Washington

Wisconsin

 

Foreign Qualifications of SNH MEZ LLC

(none)

 

Foreign Qualifications of SNH Redmond Properties LLC

Washington

 

Foreign Qualifications of SNH Seaport LLC

Massachusetts

 

Foreign Qualifications of SNH Well Properties Trust

Florida

New Mexico

 

Foreign Qualifications of SNH/CSL Properties Trust

Massachusetts

 

E-2

 

 

Foreign Qualifications of SNH/LTA Properties Trust

Alabama

California

Florida

Kentucky

Mississippi

Pennsylvania

South Carolina

Tennessee

Texas

Virginia

 

Foreign Qualifications of SPTMNR Properties Trust

Arizona

California

Massachusetts

South Dakota

Wisconsin

 

E-3

 

 

EXHIBIT A

 

CHIEF FINANCIAL OFFICER’S CERTIFICATE

 

The undersigned, Richard W. Siedel, Jr., being the Chief Financial Officer of Diversified Healthcare Trust, a Maryland real estate investment trust (the “Company”), does hereby certify that:

 

I have supervised the compilation and reviewed the circled numbers contained in the pages attached as Schedule A included in or incorporated by reference in the Registration Statement, Prepricing Prospectus and the Prospectus. Such information has been derived from the books and records of the Company, and to the best of my knowledge and belief are accurate in all material respects as of the dates set forth in the Registration Statement, Prepricing Prospectus and the Prospectus. I make no comment as to whether the foregoing information complies with the requirements of Regulation S-K.

 

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Underwriting Agreement.

 

IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ th day of ____, 2020.

 

 

   
  Richard W. Siedel, Jr.
  Chief Financial Officer

 

Ex. A

 

Exhibit 4.2

  

 

THIRD SUPPLEMENTAL INDENTURE

 

among

 

DIVERSIFIED HEALTHCARE TRUST

THE SUBSIDIARY GUARANTORS NAMED HEREIN

 

and

 

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 

Dated as of June 2, 2020

 

SUPPLEMENTAL TO THE INDENTURE DATED AS OF FEBRUARY 18, 2016

 

 

 

DIVERSIFIED HEALTHCARE TRUST

 

9.750% Senior Notes due 2025

 

 

 

 

 

 

 

 

This THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of June 2, 2020 among Diversified Healthcare Trust (formerly known as Senior Housing Properties Trust), a real estate investment trust organized and existing under the laws of the State of Maryland (the “Company”) having its principal office at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458, the other entities (other than the Trustee (as defined below)) listed on the signature pages hereto (the “Initial Subsidiary Guarantors”) and U.S. Bank National Association, a national banking organization organized and existing under the laws of the United States, as Trustee (the “Trustee”).

 

RECITALS OF THE COMPANY

 

The Company (then known as Senior Housing Properties Trust) and the Trustee are parties to an Indenture, dated as of February 18, 2016 (as from time to time hereafter amended, supplemented or otherwise modified in so far as applies to the Notes (as defined herein), the “Base Indenture” and, together with this Supplemental Indenture, as amended, supplemented or otherwise modified from time to time, the “Indenture”) to provide for the future issuance of the Company’s senior unsecured debentures, notes or other evidences of indebtedness (the “Securities”) to be issued from time to time in one or more series, including any such Securities that may have the benefit of guarantees; and

 

Pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of a series of its Securities, to be known as its 9.750% Senior Notes due 2025, the form and substance of such Securities and the terms, provisions and conditions thereof, including the guarantees thereof by the Subsidiary Guarantors (as defined herein), to be set forth as provided in the Indenture;

 

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:

 

ARTICLE 1

DEFINED TERMS

 

Section 1.1            Terms Defined in Indenture. Capitalized terms used herein and not defined herein have the meanings ascribed to such terms in the Base Indenture.

 

Section 1.2            Supplemental Definitions. The following definitions supplement, and, to the extent inconsistent with, replace the definitions in Section 101 of the Base Indenture:

 

Acquired Debt” means Debt of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.

 

Adjusted Total Assets” has the meaning provided in clause (i) of Section 3.1(a) of this Supplemental Indenture.

 

 

 

 

Annual Debt Service” as of any date means the maximum amount which is expensed in any 12-month period for interest on Debt of the Company and its Subsidiaries, excluding amortization of debt discounts and deferred financing costs.

 

Business Day” means any day other than a Saturday or Sunday or a day on which banking institutions in The City of New York or in the city in which the Corporate Trust Office is located are required or authorized to close.

 

Capital Stock” means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options to purchase any thereof.

 

Cash Equivalents” means demand deposits, certificates of deposit or repurchase agreements with banks or other financial institutions, marketable obligations issued or directly and fully guaranteed as to timely payment by the United States of America or any of its agencies or instrumentalities, or any commercial paper or other obligation rated, at time of purchase, “P-2” (or its equivalent) or better by Moody’s or “A-2” (or its equivalent) or better by Standard & Poor’s.

 

Change of Control” means the occurrence of one or more of the following events:

 

(i)               any direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” or “group” (as such terms are defined in Sections 13(d) and 14(d) of the Exchange Act), other than the Company or any of its Subsidiaries or one or more Permitted Holders;

 

(ii)             a “person” or “group” (as such terms are defined in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the ultimate “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, except that such person or group will be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time) of more than 50% of the total voting power of the Voting Stock of the Company on a fully diluted basis;

 

(iii)            the approval by the holders of common shares of beneficial interest of the Company of any plan or proposal for the liquidation or dissolution of the Company; or

 

(iv)            RMR or any of its subsidiaries ceases for any reason to act as the sole business manager for the Company.

 

2

 

 

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control solely as a result of the Company becoming a direct or indirect wholly owned subsidiary of a holding company if (A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction, no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but other than a holding company satisfying the requirements of this sentence), other than one or more Permitted Holders, is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of Voting Stock representing more than 50% of the voting power of the Voting Stock of such holding company.

 

Consolidated Income Available for Debt Service” for any period means Earnings from Operations of the Company and its Subsidiaries plus amounts which have been deducted, and minus amounts which have been added, for the following (without duplication): (i) interest or distributions on Debt of the Company and its Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries based on income, (iii) amortization of debt premiums/discounts and deferred debt issuance costs, (iv) provisions for gains and losses on properties and property depreciation and amortization, (v) the effect of any noncash charge resulting from a change in accounting principles in determining Earnings from Operations for such period and (vi) amortization of deferred charges.

 

Debt” of the Company or any Subsidiary means, without duplication, any indebtedness of the Company or any Subsidiary, whether or not contingent, in respect of:

 

(i)               borrowed money or evidenced by bonds, notes, debentures or similar instruments;

 

(ii)              borrowed money secured by any Encumbrance existing on property owned by the Company or any Subsidiary, to the extent of the lesser of (x) the amount of indebtedness so secured or (y) the fair market value of the property subject to such Encumbrance;

 

(iii)             the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit issued to provide credit enhancement or support with respect to other indebtedness of the Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property or services, except any such balance that constitutes an accrued expense or trade payable, or all conditional sale obligations or obligations under any title retention agreement;

 

(iv)            the principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock; or

 

(v)             any lease of property by the Company or any Subsidiary as lessee which is reflected on the Company’s consolidated balance sheet as a capitalized lease in accordance with generally accepted accounting principles,

 

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to the extent, in the case of items of indebtedness under (i) through (v) above, that any such items (other than letters of credit) would be properly classified as a liability on the Company’s consolidated balance sheet in accordance with generally accepted accounting principles. Debt also (1) excludes any indebtedness (A) with respect to which a defeasance or covenant defeasance or discharge has been effected (or an irrevocable deposit is made with a trustee in an amount at least equal to the outstanding principal amount of such indebtedness, the remaining scheduled payments of interest thereon to, but not including, the applicable maturity date or redemption date, and any premium or otherwise as provided in the terms of such indebtedness) in accordance with the terms thereof or which has been repurchased, retired, repaid, redeemed, irrevocably called for redemption (and an irrevocable deposit is made with a trustee in an amount at least equal to the outstanding principal amount of such indebtedness, the remaining scheduled payments of interest thereon to, but not including, such redemption date, and any premium) or otherwise satisfied or (B) that is secured by cash or Cash Equivalents irrevocably deposited with a trustee in an amount, in the case of this clause (B), at least equal to the outstanding principal amount of such indebtedness and the remaining scheduled payments of interest thereon and (2) includes, to the extent not otherwise included, any obligation by the Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another Person (other than the Company or any Subsidiary) (it being understood that Debt shall be deemed to be incurred by the Company or any Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof).

 

Depositary” has the meaning provided in Section 2.1(d) of this Supplemental Indenture.

 

Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than Capital Stock which is redeemable solely in exchange for Capital Stock which is not Disqualified Stock or for Subordinated Debt), (ii) is convertible into or exchangeable or exercisable for Debt, other than Subordinated Debt, or Disqualified Stock, or (iii) is redeemable at the option of the holder thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for Capital Stock which is not Disqualified Stock or for Subordinated Debt), in each case on or prior to the Stated Maturity of the principal of the Notes.

 

Domestic Subsidiary” means any Subsidiary of the Company that was organized under the laws of the United States or any state of the United States or the District of Columbia (excluding, for the avoidance of doubt, any Subsidiary organized under U.S. possessions such as Puerto Rico).

 

Earnings from Operations” for any period means net earnings excluding gains and losses on sales of investments, gains or losses on early extinguishment of debt, extraordinary items and property valuation losses, in each case as reflected in the financial statements of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with generally accepted accounting principles.

 

Encumbrance” means any mortgage, lien, charge, pledge, security interest or other encumbrance of any kind.

 

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Equity Offering” means an offering for cash by the Company of its common shares of beneficial interest, or options, warrants or rights with respect to its common shares, other than public offerings with respect to the Company’s common shares, or options, warrants or rights, registered on Form S-4 or S-8 or any successors thereto.

 

Excluded Subsidiary” means any Subsidiary of the Company (i) that is not a Wholly Owned Subsidiary or that holds no material assets other than the Capital Stock of one or more Subsidiaries that are not Wholly Owned Subsidiaries or (ii)(a) holding title to or beneficially owning Properties which are subject to an Encumbrance securing Debt of such Subsidiary, or being a beneficial owner of a Subsidiary of the Company holding title to or beneficially owning such Properties (but having no material assets other than such beneficial ownership interests or the Capital Stock of a Subsidiary of the Company having no material assets other than such beneficial ownership interests) and (b) which (x) is, or is expected to be, prohibited from Guaranteeing the indebtedness of any other Person pursuant to any document, instrument or agreement evidencing such Secured Debt or (y) is prohibited from Guaranteeing the indebtedness of any other Person pursuant to a provision of such Subsidiary’s organizational documents which provision was included in such Subsidiary’s organizational documents as a condition or anticipated condition to the extension of such Secured Debt; for purposes of this subsection (ii), any Subsidiary which is a lessee under a lease with a Subsidiary which is an Excluded Subsidiary under subsection (ii) shall also be deemed to be an Excluded Subsidiary. In addition, (i) RSA Healthcare, Inc., a Tennessee corporation, a Wholly Owned Subsidiary that does not own any Property or other assets, and (ii) any Subsidiary that is an “Excluded Subsidiary” as defined under any Existing Credit Agreement shall be deemed to be an Excluded Subsidiary for purposes of this definition.

 

Existing Credit Agreements” means, collectively, (i) that certain Amended and Restated Credit Agreement, dated August 1, 2017, by and among the Company, Wells Fargo Bank, National Association, as administrative agent, and the lenders and the other parties thereto, (ii) that certain Amended and Restated Term Loan Agreement, dated August 1, 2017, by and among the Company, Wells Fargo Bank, National Association, as administrative agent, and the lenders and the other parties thereto, and (iii) and that certain Term Loan Agreement, dated December 12, 2019, by and among the Company, Wells Fargo Bank, National Association, as administrative agent, and the lenders and the other parties thereto, in each case, as amended, restated, supplemented, modified, renewed, refunded, increased, extended, replaced in any manner (whether upon or after termination or otherwise) or refinanced in whole or in part from time to time.

 

Foreign Subsidiary” means (a) any Real Foreign Subsidiary, (b) any Domestic Subsidiary that has no material assets (with the determination of materiality to be made in good faith by the Company) other than Capital Stock of one or more Real Foreign Subsidiaries, and (c) any Subsidiary (including any Subsidiary that would otherwise be a Domestic Subsidiary) of the Company that owns any Capital Stock of a Real Foreign Subsidiary if the provision of a subsidiary guarantee by such Subsidiary could reasonably be expected, in the good faith judgment of the Company, cause any earnings of such Real Foreign Subsidiary, as determined for U.S. federal income tax purposes, to be treated as a deemed dividend to such Real Foreign Subsidiary’s United States parent for U.S. federal income tax purposes.

 

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generally accepted accounting principles” means generally accepted accounting principles in the United States of America which were in effect on December 20, 2001.

 

Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:

 

(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or

 

(2) entered into for purposes of assuring in any other manner the obligee of such indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);

 

provided, however, that the term “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

 

Interest Payment Date” with respect to the Notes is defined in Section 101 of the Base Indenture and Section 2.1(e) of this Supplemental Indenture.

 

Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by S&P, or if Moody’s or Standard & Poor’s ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade rating from any other Rating Agency.

 

Issue Date” means June 2, 2020.

 

Joint Venture Interests” means assets of the Company and its Subsidiaries constituting an equity investment in real estate assets or other properties, or in an entity holding real estate assets or other properties, jointly owned by the Company and its Subsidiaries, on the one hand, and one or more other Persons not constituting Affiliates of the Company, on the other hand, excluding any entity or properties (i) which is a Subsidiary or are properties if the co-ownership thereof (if in a separate entity) would constitute or would have constituted a Subsidiary, or (ii) to which, at the time of determination, the Company’s manager at such time or an Affiliate of the Company’s manager at such time provides management services. In no event shall Joint Venture Interests include equity securities that are part of a class of equity securities that are traded on a national or regional securities exchange or a recognized over-the-counter market or any investments in debt securities, mortgages or other Debt.

 

Make-Whole Amount” means, in connection with any redemption of any Note whose Redemption Price is to be determined by reference to the Make-Whole Amount, the greater of:

 

(i)                 1.0% of the principal amount of such Note; and

 

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(ii)              the excess, if any, of (i) the aggregate present value as of the applicable Redemption Date of the Redemption Price of such Note that would apply if such Note were redeemed on June 15, 2022 (such Redemption Price (expressed as a percentage of principal amount) being set forth in the table in Section 2.1(g) of this Supplemental Indenture) and the amount of interest (exclusive of interest accrued to the Redemption Date) that would have been payable in respect of each dollar of principal of such Note being redeemed if such redemption had been made on June 15, 2022 determined by discounting, on a semiannual basis, such Redemption Price and interest at the Reinvestment Rate (determined on the third Business Day preceding the date the notice of redemption relating to such redemption is given) from June 15, 2022 (in the case of such redemption price) and, in the case of interest, from respective dates on which such interest would have been payable if such redemption had been made on June 15, 2022 over (ii) the aggregate principal amount of such Note being redeemed.

 

The Make-Whole Amount shall be calculated by the Company and set forth in an Officer’s Certificate delivered to the Trustee, and the Trustee shall be entitled to rely on said Officer’s Certificate.

 

Mid-BBB Investment Grade Rating” means a rating equal to or higher than Baa2 (or the equivalent) by Moody’s or BBB (or the equivalent) by S&P, or if Moody’s or Standard & Poor’s ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade rating from any other Rating Agency.

 

Moody’s” means Moody’s Investors Service, Inc., or any successor thereof.

 

Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements).

 

Notes” means the Company’s 9.750% Senior Notes due 2025, issued under this Supplemental Indenture and the Indenture, as amended or supplemented from time to time.

 

Permitted Holder” means (i) RMR or any Person to which RMR or its subsidiaries provide management services, in each case, so long as one or more Principal Parties together, directly or indirectly, control RMR, (ii) a Principal Party and (iii) any Person, directly or indirectly, controlled by a Principal Party.

 

Principal Party” means the individual who, as of the Issue Date, is the ultimate controlling stockholder of RMR, and his immediate family members and his and their lineal descendants.

 

Property” means any parcel of real property, together with all improvements thereon.

 

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Rating Agencies” means (1) each of Moody’s and Standard & Poor’s; and (2) if either Moody’s or Standard & Poor’s ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a ‘‘nationally recognized statistical rating organization’’ as such term is defined in Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Moody’s or Standard & Poor’s, or either of them, as the case may be.

 

“Real Foreign Subsidiary” means a Subsidiary of the Company that is not a Domestic Subsidiary.

 

Regular Record Date” with respect to the Notes is defined in Section 101 of the Base Indenture and Section 2.1(e) of this Supplemental Indenture.

 

Reinvestment Rate” means a rate per annum equal to the sum of 0.50% (fifty one hundredths of one percent) plus the arithmetic mean of the yields on treasury securities at constant maturity displayed for each of the five most recent days published in the Statistical Release under the caption “Treasury Constant Maturities” for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity (which, in the case of maturities corresponding to the principal and interest due on the Notes at their maturity, shall be deemed to be June 15, 2022), as of the Redemption Date of the principal being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such remaining life to maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used.

 

RMR” means The RMR Group Inc. or its successors and assigns.

 

Secured Debt” means Debt of the Company or its Subsidiaries secured by an Encumbrance on the property of the Company or its Subsidiaries.

 

Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” (within the meaning of Regulation S-X, promulgated by the Commission under the Securities Act) of the Company.

 

Standard & Poor’s” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or any successor thereof.

 

Statistical Release” means the statistical release designated “H.15” or any successor publication which is published daily by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities or, if such statistical release (or any successor publication) is not published at the time of any determination under the Indenture, then any publicly available source of similar market data used for this purpose in accordance with customary market practice which shall be designated by the Company.

 

Subordinated Debt” means Debt which by the terms of such Debt is subordinated in right of payment to the principal of and interest and premium, if any, on the Notes.

 

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Subsidiary” means any corporation or other Person of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests of which are owned, directly or indirectly, by the Company or one or more other Subsidiaries of the Company, and which is required to be consolidated in accordance with generally accepted accounting principles. For the purposes of this definition, “voting equity securities” means equity securities having voting power for the election of directors or persons serving comparable functions as directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency.

 

Subsidiary Guarantee” means, individually, any Guarantee of payment of the Notes by a Subsidiary Guarantor pursuant to the terms of Article 6 of this Supplemental Indenture.

 

Subsidiary Guarantor” means each Initial Subsidiary Guarantor and any other Subsidiary of the Company that provides a Subsidiary Guarantee of the Notes in accordance with the Indenture; provided that upon the release or discharge of such Person from its Subsidiary Guarantee in accordance with the Indenture, such Person ceases to be a Subsidiary Guarantor.

 

Total Assets” as of any date means the sum of (i) the Undepreciated Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries determined in accordance with generally accepted accounting principles (but excluding accounts receivable and intangibles).

 

Total Unencumbered Assets” as of any date means the sum of (i) Undepreciated Real Estate Assets not securing any portion of Secured Debt and (ii) the amount of all other assets of the Company and its Subsidiaries not securing any portion of Secured Debt, in each case on such date determined on a consolidated basis in accordance with generally accepted accounting principles (but excluding accounts receivable and intangibles); provided that, in determining Total Unencumbered Assets as a percentage of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis for purposes of the covenant set forth in Section 3.1(b) of this Supplemental Indenture, Joint Venture Interests shall be excluded from Total Unencumbered Assets to the extent such Joint Venture Interests would otherwise be included therein.

 

Undepreciated Real Estate Assets” as of any date means the cost (original cost plus capital improvements) of real estate and associated tangible personal property used in connection with the real estate assets of the Company and its Subsidiaries on such date, before depreciation and amortization determined on a consolidated basis in accordance with generally accepted accounting principles.

 

Unsecured Debt” means any Debt of the Company or its Subsidiaries which is not Secured Debt.

 

Voting Stock” means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, trustees, managers or other voting members of the governing body of such Person.

 

Wholly Owned Subsidiary” means any Subsidiary of the Company of which all the outstanding Voting Stock of such Subsidiary (other than directors’ qualifying shares and other than an immaterial amount of Voting Stock required to be owned by other Persons pursuant to applicable law or regulation) is owned by the Company and/or one or more Subsidiaries of the Company.

 

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ARTICLE 2

TERMS OF THE NOTES

 

Section 2.1                Terms of the Notes. Pursuant to Section 301 of the Base Indenture, the Notes shall have the following terms and conditions:

 

(a)               Title. The Notes shall be in registered form under the Indenture and shall be known as the Company’s “9.750% Senior Notes due 2025.”

 

(b)               Aggregate Principal Amount. Except (i) as provided in this Section and (ii) for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 906 or 1107 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered hereunder, the Notes will be limited to an aggregate principal amount of $1,000,000,000, subject to the right of the Company to reopen such series for issuances of additional Notes (“Additional Notes”) having the same terms and conditions as the Notes issued on the Issue Date except for issue date, issue price and, if applicable, the first Interest Payment Date thereon and related interest accrual date.

 

(c)               Form of Notes. The Notes (together with the Trustee’s certificate of authentication) shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and made a part of this Supplemental Indenture.

 

(d)               Registered Securities in Book Entry Form. The Notes shall be initially issued in the form of one or more registered Global Securities without coupons (each, a “Global Note”) and shall be deposited with, or on behalf of, The Depository Trust Company (“DTC” and, together with any successor depositary with respect to the Global Notes appointed under the Indenture, the “Depositary”) and registered in the name of DTC’s nominee, Cede & Co. Unless and until it is exchanged in whole or in part for the individual Notes represented thereby under the circumstances described below, a Global Note may not be transferred except as a whole by a Depositary to its nominee, by a nominee of a Depositary to such Depositary or another nominee of such Depositary, or by a Depositary or its nominee to a successor Depositary or a nominee of such successor.

 

So long as a Depositary or its nominee is the Holder of a Global Note, such Depositary or its nominee, as the case may be, will be considered the sole owner or Holder of the Notes represented by such Global Note for all purposes under the Indenture. Except as provided below, owners of a beneficial interest in Notes evidenced by a Global Note will not be entitled to have any of the individual Notes represented by such Global Note registered in their names, will not receive or be entitled to receive physical delivery of any such Notes in definitive form and will not be considered the owners or Holders thereof under the Indenture for any purpose, including with respect to giving of any direction, instructions or approvals to the Trustee hereunder.

 

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A Global Note may be exchanged in whole or in part for individual Notes represented thereby only if (i) the Depositary (A) has notified the Company that it is unwilling or unable to continue as a depositary for such Global Note or (B) has ceased to be a clearing agency registered under the Exchange Act, and in either case a successor depositary shall not have been appointed by the Company within 90 days after such notice is received by the Company or the Company becomes aware of such cessation, respectively, or (ii) there shall have occurred and be continuing an Event of Default with respect to such Global Note and the Security Registrar has received a written request from an owner of beneficial interest in such Global Note to receive registered Notes. In any such case, the Company will issue individual Notes in exchange for such Global Note representing such Notes in authorized denominations.

 

Notwithstanding any provisions of Section 2.1(e) or Section 2.1(f) of this Supplemental Indenture to the contrary, payments of principal, premium, if any, and interest on any Global Note shall be made in accordance with the procedures of the Depositary and its participants in effect from time to time.

 

(e)               Interest and Interest Rate. The Notes will bear interest at a rate of 9.750% per annum, from June 2, 2020 (or, in the case of Notes issued after June 2, 2020, from the date designated by the Company in connection with such issuance), or from the immediately preceding Interest Payment Date to which interest has been paid or duly provided for, payable semi-annually in arrears on June 15 and December 15 of each year, commencing December 15, 2020 (each of which shall be an “Interest Payment Date”), or if such day is not a Business Day, on the next succeeding Business Day, to the Persons in whose names the Notes are registered in the Security Register at the close of business on the Regular Record Date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, a “Regular Record Date”).

 

(f)                Principal Repayment; Currency. The Stated Maturity of the principal of the Notes is June 15, 2025; provided, however, the Notes may be earlier redeemed at the option of the Company as provided in Section 2.1(g) of this Supplemental Indenture and the Company may be obligated to repurchase the Notes prior to the Stated Maturity of the principal of the Notes as provided in Section 3.1(f) of this Supplemental Indenture. The principal of each Note payable at its Maturity shall be paid against presentation and surrender thereof at the Corporate Trust Office, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public or private debts.

 

(g)               Redemption at the Option of the Company. The Notes will be subject to redemption (pursuant to the terms of this Section 2.1(g)) in whole at any time or in part from time to time before they mature at the option of the Company upon not less than 15 nor more than 60 days’ notice to each Holder of Notes to be redeemed at its address appearing in the Security Register, or, in the case of any Global Note, in accordance with the procedures of the Depositary and its participants in effect from time to time. On and after June 15, 2022, the Company may redeem the Notes at its option, in whole or from time to time in part, at the following Redemption Prices (expressed as a percentage of principal amount) plus accrued and unpaid interest, if any, on the Notes being redeemed to, but not including, the applicable Redemption Date, if redeemed during the twelve-month period beginning on June 15 of the years indicated below:

 

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Year  Percentage 
2022   104.875%
2023   102.438%
2024 and thereafter   100.000%

 

Prior to June 15, 2022, the Company may, at its option, on any one or more occasions, redeem up to 40% of the original aggregate principal amount of Notes (including the original aggregate principal amount of any Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a Redemption Price (expressed as a percentage of the principal amount thereof) of 109.750% plus accrued and unpaid interest, if any, to, but not including, the applicable Redemption Date; provided that

 

(i)               at least 50% of the original aggregate principal amount of the Notes (including the original aggregate principal amount of any Additional Notes) remains outstanding after each such redemption; and

 

(ii)              the Redemption Date occurs within 90 days after the closing of such Equity Offering (for purposes of clarity, in the event that there are two or more closings for any Equity Offering, then each such closing shall be deemed a separate “closing” for purposes of the foregoing provisions of this clause (ii) with respect to the securities issued at such closing).

 

In addition, the Company may redeem the Notes at its option, in whole or from time to time in part, at any time prior to June 15, 2022, at a Redemption Price equal to the outstanding principal amount of the Notes being redeemed, plus accrued and unpaid interest, if any, on the Notes being redeemed, to, but not including, the applicable Redemption Date, plus the Make-Whole Amount, if any.

 

On or before 11:00 a.m. Eastern Time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003 of the Base Indenture) an amount of money sufficient to pay the Redemption Price of, and accrued and unpaid interest on, all the Notes which are to be redeemed on such Redemption Date. If the Company instructs the Trustee in writing to send the notice of redemption in the name of and at the expense of the Company as provided in Section 1104 of the Base Indenture, the Company shall provide the Trustee with such written instruction at least five (5) Business Days (or such shorter time as the Trustee may agree) prior to the date such notice of redemption is to be sent.

 

(h)               Notices. Notices to the Company or any Subsidiary Guarantor shall be directed to it at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458-1634, fax number (617) 796-8349, Attention: President; notices to the Trustee shall be directed to it at One Federal Street, 3rd Floor, Boston, Massachusetts 02110, email: david.doucette@usbank.com, fax number (617) 603-6683, Attention: Corporate Trust Department, re: Diversified Healthcare Trust 9.750% Senior Notes due 2025, or as to any party, at such other address as shall be designated by such party in a written notice to the other parties. All notices and communications (other than those sent to Holders of the Notes) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five (5) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee); when receipt is acknowledged, if sent by e-mail or facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

 

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(i)                 Legal Holidays. If any Interest Payment Date, Redemption Date or Change of Control Payment Date for the Notes or the Stated Maturity for the principal of the Notes falls on a day that is not a Business Day, the payment otherwise payable on such day will be due and payable on the next succeeding Business Day, and no interest will accrue thereon for the period from and after such Interest Payment Date, Redemption Date, Change of Control Payment Date or Stated Maturity, as the case may be, through such next succeeding Business Day. The provisions of this Section 2.1(i) shall supersede and replace Section 113 of the Base Indenture with respect to the Notes.

 

ARTICLE 3

ADDITIONAL COVENANTS

 

Section 3.1               Additional Covenants. In addition to the covenants of the Company set forth in Article Eight and Article Ten of the Base Indenture, Holders of the Notes shall have the benefit of the following covenants:

 

(a)               Limitations on Incurrence of Debt.

 

(i)                 The Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds therefrom, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles is greater than 60% of the sum of (without duplication):

 

(A)             the Total Assets of the Company and its Subsidiaries as of the end of the fiscal quarter covered by the Company’s Annual Report on Form 10-K, or its Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted or required under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt; and

 

(B)              the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such fiscal quarter, including those proceeds obtained in connection with the incurrence of such additional Debt.

 

For purposes of this Supplemental Indenture, “Adjusted Total Assets” means the sum of (A) and (B) above.

 

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(ii)              The Company will not, and will not permit any Subsidiary to, incur any Secured Debt if, immediately after giving effect to the incurrence of such additional Secured Debt and the application of the proceeds therefrom, the aggregate principal amount of all outstanding Secured Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles is greater than 40% of Adjusted Total Assets.

 

(iii)            The Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and on a pro forma basis, including the application of the proceeds therefrom, the ratio of Consolidated Income Available for Debt Service to the Annual Debt Service for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred is less than 1.5 to 1.0, calculated on the assumptions that:

 

(A)             such Debt and any other Debt incurred by the Company and its Subsidiaries on a consolidated basis since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period;

 

(B)              the repayment, retirement or other discharge of any other Debt by the Company and its Subsidiaries on a consolidated basis since the first day of such four-quarter period had occurred at the beginning of such period (except that, in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period);

 

(C)              in the case of Acquired Debt or Debt incurred in connection with or in contemplation of any acquisition, including any Person becoming a Subsidiary, since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and

 

(D)             in the case of any acquisition or disposition by the Company and its Subsidiaries on a consolidated basis of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation.

 

If the Debt giving rise to the need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest at a floating interest rate, then, for purposes of calculating the Annual Debt Service, the interest rate on such Debt shall be computed on a pro forma basis as if the average interest rate which would have been in effect during the entirety of such four-quarter period had been the applicable rate for the entirety of such period.

 

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(b)               Maintenance of Total Unencumbered Assets. The Company and its Subsidiaries will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis in accordance with generally accepted accounting principles.

 

(c)               Provision of Financial Information. Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, it will, within 15 days after each of the respective dates by which it would have been required to file annual reports, quarterly reports and other documents with the Commission if it were so subject, (1) transmit by mail to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports, quarterly and other reports, financial statements and other documents which it would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, if it were subject to such Sections, (2) file with the Trustee copies of the annual reports, quarterly or other reports, financial statements and other documents which it would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, if it was subject to such Sections, and (3) promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder; provided that, the foregoing requirements shall be deemed satisfied if the foregoing materials are available on the Commission’s EDGAR system or on the Company’s website within the applicable time period. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reports, financial statements, documents or information filed by the Company and delivery of such reports, financial statements, documents or information to the Trustee is for informational purposes only and receipt of such shall not constitute constructive notice thereof or any information contained therein.

 

Notwithstanding the foregoing, if at any time the Notes are guaranteed by any direct or indirect parent company of the Company, the Company may satisfy its obligations under this Section 3.1(c) with respect to financial information relating to the Company by furnishing financial information relating to such direct or indirect parent company; provided, however, that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent company and any of its Subsidiaries other than the Company and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand.

 

(d)               Additional Subsidiary Guarantees. If at any time (i) any Subsidiary (whether existing at the Issue Date or acquired or created after the Issue Date) becomes (including on the date of acquisition or creation) a Subsidiary that is not an Excluded Subsidiary or a Foreign Subsidiary or (ii) any Subsidiary ceases to be an Excluded Subsidiary or a Foreign Subsidiary, then the Company will cause such Subsidiary to execute and deliver to the Trustee, within thirty (30) days from the date such Subsidiary became a Subsidiary that is not an Excluded Subsidiary or a Foreign Subsidiary or ceased to be an Excluded Subsidiary or a Foreign Subsidiary, as the case may be, a supplemental indenture in a form reasonably satisfactory to the Trustee pursuant to which such Subsidiary will fully and unconditionally guarantee the Notes, jointly and severally with all other Subsidiary Guarantors, and deliver an Officer’s Certificate and Opinion of Counsel reasonably satisfactory to the Trustee.

 

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The covenant in this Section 3.1(d) will automatically and permanently terminate and the Company will be automatically and permanently released from all its obligations under this Section 3.1(d) on and after the date that (a) the Notes have an Investment Grade Rating from both Rating Agencies and one of such Investment Grade Ratings is a Mid-BBB Investment Grade Rating; and (b) no Default or Event of Default has occurred and is continuing.

 

(e)               Subsidiary Guarantor May Consolidate, Etc., Only on Certain Terms; Successor Substituted. A Subsidiary Guarantor may not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any other Person (other than the Company or another Subsidiary Guarantor), and a Subsidiary Guarantor may not permit any other Person (other than the Company or another Subsidiary Guarantor) to consolidate with or merge into it, unless:

 

(i)                 either (1) the Subsidiary Guarantor is the surviving entity or (2) the Person formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor) or to which such conveyance, transfer or lease has been made is an entity organized and validly existing under the laws of the United States, any state thereof or the District of Columbia and expressly assumes, by a supplemental indenture executed and delivered to the Trustee, in form satisfactory to the Trustee, the Subsidiary Guarantor’s obligations under its Subsidiary Guarantee and the Indenture;

 

(ii)              immediately after giving effect to such transaction, and treating any indebtedness which becomes an obligation of the Subsidiary Guarantor, any other Subsidiary or the Company as a result of such transaction as having been incurred by the Subsidiary Guarantor, such Subsidiary or the Company at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default shall have happened and be continuing; and

 

(iii)            the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Section 3.1(e) and that all conditions precedent provided for in the Indenture relating to such transaction have been complied with;

 

provided that this Section 3.1(e) shall not apply to a transaction pursuant to which such Subsidiary Guarantor shall be released from its obligations under its Subsidiary Guarantee and the Indenture in accordance with Section 6.4 of this Supplemental Indenture.

 

Upon any consolidation of a Subsidiary Guarantor with, or merger of a Subsidiary Guarantor into, any other Person or any conveyance, transfer or lease all or substantially all of the properties and assets of a Subsidiary Guarantor in accordance with this Section 3.1(e), the successor Person formed by such consolidation or into which such Subsidiary Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, such Subsidiary Guarantor under the Indenture with the same effect as if such successor Person had been named as a Subsidiary Guarantor in the Indenture, and thereafter, except in the case of a lease, the predecessor Subsidiary Guarantor shall be relieved of all obligations and covenants under the Indenture and its Subsidiary Guarantee.

 

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(f)                Repurchase of Notes upon Change of Control. If a Change of Control occurs, each Holder of Notes will have the right to require the Company to repurchase some or all (in minimum principal amounts of $2,000 or an integral multiple of $1,000, provided that the remaining principal amount of any Note repurchased in part must not be less than $2,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, up to, but not including, the date of repurchase (the “Change of Control Payment”).

 

Within ten (10) Business Days following a Change of Control, the Company will mail a notice to each Holder of Notes (with a copy to the Trustee) describing the transaction or transactions that constitute, or are expected to constitute, the Change of Control and offering to repurchase Notes on a specified date (the “Change of Control Payment Date”), at a purchase price equal to the Change of Control Payment (the “Change of Control Offer”). The Change of Control Payment Date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or in the case of Global Notes, given pursuant to applicable procedures of the Depositary).

 

On the Change of Control Payment Date, the Company will, to the extent lawful:

 

(i)                accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;

 

(ii)              deposit with the Paying Agent for the Notes an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so accepted; and

 

(iii)            deliver or cause to be delivered to the Trustee the Notes accepted and an Officer’s Certificate stating the aggregate principal amount of all Notes purchased by the Company.

 

The Paying Agent for the Notes will promptly mail to each Holder of Notes properly tendered (or in the case of Global Notes, will promptly pay to the Depositary or its nominee) the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail to each Holder a new Note in principal amount equal to any unpurchased portion of the Notes surrendered; provided that such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.

 

The Company will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations to the extent those laws and regulations are applicable to any Change of Control Offer. If the provisions of any of the applicable securities laws or regulations conflict with the provisions of this Section 3.1(f), the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.1(f) by virtue of that compliance.

 

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The Company will not be obligated to make or consummate a Change of Control Offer if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 3.1(f) applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer. In addition, the Company will not be obligated to make or consummate a Change of Control Offer with respect to the Notes, if it has irrevocably elected to redeem all of the Notes under Section 2.1(g) of this Supplemental Indenture and has not defaulted on its redemption obligations. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, subject to one or more conditions precedent, including, but not limited to, the consummation of such Change of Control. The Change of Control Payment Date may be delayed until such time (including more than 60 days after the notice is mailed or delivered, including by electronic transmission) as such Change of Control is consummated. The Company may rescind or amend the Change of Control Offer in the event that the Company shall determine that the Change of Control will not occur by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed. A Change of Control Offer made in advance of the Change of Control may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of the Indenture. Prior to the occurrence of a Change of Control, the provisions of this Section 3.1(f) relating to the Company’s obligation to make a Change of Control Offer may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.

 

ARTICLE 4

SUPPLEMENTAL INDENTURES

 

Section 4.1            Restatement of Section 901 of the Base Indenture. The provisions of Section 901 of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

 

“Section 901 Supplemental Indentures Without Consent of Holders

 

Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

 

(a)               to evidence the succession of another Person to the Company or a Subsidiary Guarantor and the assumption by any such successor of the covenants of the Company herein and in the Securities or the covenants of such Subsidiary Guarantor herein and in its Subsidiary Guarantee; or

 

(b)               to add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or any Subsidiary Guarantor; or

 

(c)               to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

 

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(d)               to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities of any series in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of any series of Securities in uncertificated form; or

 

(e)               to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or

 

(f)                to add guarantees of or to secure all or any series of the Securities or any guarantees thereof; or

 

(g)               to evidence the release of any Subsidiary Guarantor or any guarantor of the Securities of any series; or

 

(h)               to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or

 

(i)                 to establish the forms or terms of Securities of any series as permitted by Sections 201 and 301 or to provide for the issuance of additional Securities of any series; or

 

(j)                 to cure any ambiguity, to correct or supplement any provision contained herein or in any indenture supplemental hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform the terms hereof, as amended and supplemented, that are applicable to the Securities of any series to the description of the terms of such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time of initial sale thereof; or

 

(k)               to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance (whether legal or covenant defeasance) or satisfaction and discharge of any series of Securities; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect; or

 

(l)                 to prohibit the authentication and delivery of additional series of Securities; or

 

(m)             to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act;

 

(n)               to comply with the rules of any applicable Depositary; or

 

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(o)               to make any other provisions with respect to matters or questions arising under the Indenture, provided that such action pursuant to this clause (n) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.”

 

Section 4.2            Restatement of Section 902 of the Base Indenture. The provisions of Section 902 of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

Section 902 Supplemental Indentures With Consent of Holders

 

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

(a)               change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, or reduce the amount (including the amount of any premium) due upon the redemption thereof, or  reduce the amount of the principal of a Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change the date on which any Security may be subject to redemption, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of a Change of Control Offer, on or after the Change of Control Payment Date (or Change of Control Payment Date as may be delayed, as the case may be)), or

 

(b)               reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

(c)               release any Subsidiary Guarantor from any of its obligations under its Subsidiary Guarantee or this Indenture except in accordance with the terms of this Indenture; or

 

(d)               amend, supplement, waive or modify the Company’s obligation to make a Change of Control Offer, or reduce the premium payable upon any repurchase of Notes pursuant to a Change of Control Offer or change the time at which any Notes may be repurchased pursuant to Section 3.1(f) of the Supplemental Indenture, whether through an amendment, supplement, waiver or modification of provisions in Section 3.1(f) of the Supplemental Indenture or any definitions or other provisions in this Indenture or otherwise, unless such amendment, supplement waiver or modification shall be in effect prior to the occurrence of the applicable Change of Control; or

 

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(e)               modify any of the provisions of this Section, Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1006, or the deletion of this proviso, in accordance with the requirements of Section 611 and clause (h) of Section 901.

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.”

 

ARTICLE 5

OTHER PROVISIONS

 

Section 5.1            Restatement of Section 101 of the Base Indenture. (a) The provisions of Section 101(a) of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

 

“(a)        the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, and the terms “Change of Control,” “Change of Control Offer,” “Change of Control Payment Date,” “Notes,” “Subsidiary Guarantee” and “Subsidiary Guarantor” have the meanings assigned to them in the Supplemental Indenture and include the plural as well as the singular;”

 

(b) Section 101 of the Base Indenture, as applied to the Notes, is further amended by adding the following defined term in its appropriate alphabetical position:

 

““Supplemental Indenture” means the Third Supplemental Indenture to this Indenture, dated as of June 2, 2020, by and among the Company, the subsidiary guarantors named therein, and the Trustee, as the same may be amended or supplemented from time to time.”

 

Section 5.2            Restatement of Section 501(a) of the Base Indenture. The provisions of Section 501(a) of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

 

“(a)        default in the payment of principal of or any premium on any Security of that series at its Maturity (including, in the case of the Notes, a default in making a payment to purchase Notes pursuant to a Change of Control Offer); or”

 

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Section 5.3            Sinking Funds not Applicable. Section 501(c) of the Base Indenture shall not be applicable to the Notes.

 

Section 5.4            Restatement of Section 501(d) of the Base Indenture. The provisions of Section 501(d) of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

 

“(d)        default in the performance of, or breach of, any covenant of the Company or any Subsidiary Guarantor in this Indenture (other than a default under Section 501(a) or Section 501(b) or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of more than 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or”

 

Section 5.5            Restatement of Section 501(e) of Base Indenture. The provisions of Section 501(e) of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

 

“(e)         the Company or one of its Significant Subsidiaries, if any, pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, or (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property; or”

 

Section 5.6            Restatement of Section 501(f) of Base Indenture. The provisions of Section 501(f) of the Base Indenture, as applied to the Notes, are restated in their entirety and shall be deemed to read as follows in lieu of the provisions set forth therein:

 

“(f)        a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or one of its Significant Subsidiaries in an involuntary case, (ii) appoints a Custodian of the Company or such Significant Subsidiary or for all or substantially all of its property, or (iii) orders the liquidation of the Company or such Significant Subsidiary, and the order or decree remains unstayed and in effect for 90 days; or”

 

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Section 5.7            Additional Events of Default. In accordance with Section 501(g) of the Base Indenture, each of the following shall also constitute an “Event of Default” with respect to the Notes:

 

(1) default under any bond, debenture, note or other evidence of indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company (including a default with respect to Securities issued under the Indenture other than the Notes) under which there may be issued or by which there may be secured any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $50,000,000 of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding $50,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of more than 25% in aggregate principal amount of the Outstanding Notes, a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” under the Indenture; and

 

(2) any Subsidiary Guarantee of a Subsidiary Guarantor that is a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or is declared null and void in a judicial proceeding or any Subsidiary Guarantor that is a Significant Subsidiary or group of Subsidiary Guarantors that taken together would constitute a Significant Subsidiary denies or disaffirms its or their, as the case may be, obligations under the Indenture or its or their Subsidiary Guarantees, as the case may be.

 

Section 5.8            No Premium or Make-Whole Amount Upon Acceleration. Notwithstanding any provisions to the contrary in the Base Indenture, upon any acceleration of the Notes under Section 502 of the Base Indenture (other than, with respect to an Event of Default under Section 501(a) of the Base Indenture arising out of a default in the payment of the Redemption Price of the Notes involving a premium or Make-Whole Amount or the payment of a Change of Control Payment, any such acceleration as it relates to the Notes in respect of which such payments were not made) the amount immediately due and payable in respect of the Notes shall equal the outstanding principal amount thereof, plus accrued and unpaid interest thereon; it being understood that nothing in this Section 5.8 shall deprive any Holder of Notes in respect of which the Company defaults in paying the Redemption Price or Change of Control Payment thereof of such Holder’s right to any premium or Make-Whole Amount that is part of the Redemption Price or Change of Control Payment in respect of such Notes.

 

Section 5.9            Applicability of Satisfaction and Discharge. Article Four of the Base Indenture applies to the Notes, except for the proviso at the end of Section 401(a). For the avoidance of doubt, upon satisfaction and discharge of the Indenture with respect to the Notes pursuant to Article Four of the Base Indenture, the Subsidiary Guarantees will automatically terminate, all other obligations of the Subsidiary Guarantors under the Indenture will automatically terminate and the Subsidiary Guarantors will be automatically released from their obligations under their Subsidiary Guarantees and their other obligations under the Indenture.

 

Section 5.10        Applicability of Defeasance and Covenant Defeasance Provisions. Article Thirteen of the Base Indenture, including provisions for Defeasance and Covenant Defeasance, applies to the Notes, except for the proviso at the end of the first sentence of Section 1304(a). For the avoidance of doubt, upon Defeasance or Covenant Defeasance with respect to the Notes, the Subsidiary Guarantees will automatically terminate, all other obligations of the Subsidiary Guarantors under the Indenture will automatically terminate and the Subsidiary Guarantors will be automatically released from their obligations under their Subsidiary Guarantees and their obligations under the Indenture.

 

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ARTICLE 6

SUBSIDIARY GUARANTEES

 

Section 6.1            Subsidiary Guarantee. Subject to this Article 6, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees on a senior unsecured basis to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that: (a) the principal of and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration or otherwise, and interest on the overdue principal of, and overdue premium and interest on, the Notes, if any, if lawful, and all other obligations of the Company to Holders of the Notes or the Trustee under the Indenture or the Notes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture or the Notes, the release of any other Subsidiary Guarantor, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor hereby waives, to the extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.

 

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Unless and until released with respect to any Subsidiary Guarantor in accordance with Section 6.4 of this Supplemental Indenture, this Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a custodian, trustee, liquidator or other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority or is otherwise required to return to the Company, any Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to the Company or such Subsidiary Guarantor, any amount paid by the Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (a) subject to this Article 6, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five of the Base Indenture, as supplemented by this Supplemental Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in such Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee.

  

Section 6.2            Limitation on Subsidiary Guarantor Liability. Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder of the Notes, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of the Notes and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor under its Subsidiary Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 6, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee and the Indenture not constituting a fraudulent transfer or conveyance under such laws. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee is entitled to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the adjusted net assets of each Subsidiary Guarantor, so long as the exercise of such right does not impair the rights of the Holders of the Notes under this Subsidiary Guarantee.

 

Section 6.3            Execution and Delivery of Subsidiary Guarantee. To evidence its Subsidiary Guarantee set forth in Section 6.1 of this Supplemental Indenture, each Subsidiary Guarantor hereby agrees that this Supplemental Indenture or a supplemental indenture entered into by such Subsidiary Guarantor pursuant to Section 3.1(d) of this Supplemental Indenture, as the case may be, shall be executed on behalf of such Subsidiary Guarantor by an officer or other authorized signatory of such Subsidiary Guarantor.

 

Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 6.1 of this Supplemental Indenture shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Subsidiary Guarantee on the Notes.

 

If an officer or other authorized signatory of any Subsidiary Guarantor whose signature is on this Supplemental Indenture or a supplemental indenture entered into by such Subsidiary Guarantor pursuant to Section 3.1(d) of this Supplemental Indenture, as the case may be, no longer holds that office or is no longer such an authorized signatory at the time the Trustee authenticates any Note, the Subsidiary Guarantee of such Subsidiary Guarantor shall be valid nevertheless with respect to such Note.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in the Indenture on behalf of the Subsidiary Guarantors.

 

25 

 

 

Section 6.4            Release of a Subsidiary Guarantor. The Subsidiary Guarantee of a Subsidiary Guarantor will automatically terminate and be released, all other obligations of such Subsidiary Guarantor under the Indenture will automatically terminate and such Subsidiary Guarantor will be automatically released from its obligations under its Subsidiary Guarantee and its other obligations under the Indenture:

 

(a)               in the event of a sale or other disposition of all or substantially all of the properties or assets of such Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary;

 

(b)               in the event of a sale or other disposition (including through merger or consolidation) of Capital Stock of such Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary and such Subsidiary Guarantor ceases to be a Subsidiary as a result of the sale or other disposition;

 

(c)               upon such Subsidiary Guarantor becoming an Excluded Subsidiary or a Foreign Subsidiary;

 

(d)               upon the satisfaction and discharge, Defeasance or Covenant Defeasance of the Notes in accordance with Article Four or Article Thirteen of the Base Indenture;

 

(e)               upon the liquidation or dissolution of such Subsidiary Guarantor, provided no Default or Event of Default has occurred that is continuing;

 

(f)                upon the merger of such Subsidiary Guarantor into, or the consolidation of such Subsidiary Guarantor with, (a) a Subsidiary if the surviving or resulting entity is an Excluded Subsidiary or a Foreign Subsidiary or (b) the Company or another Subsidiary Guarantor; or

 

(g)               on and after the date that (a) the Notes have an Investment Grade Rating from both Rating Agencies and one of such Investment Grade Ratings is a Mid-BBB Investment Grade Rating; and (b) no Default or Event of Default has occurred and is continuing.

 

At the request of the Company, and upon delivery to the Trustee of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions provided for in this Supplemental Indenture to the release of a Subsidiary Guarantor from its Subsidiary Guarantee have been complied with (provided that the legal counsel delivering such Opinion of Counsel may rely as to matters of fact on one or more Officer’s Certificates of the Company), the Trustee shall execute and deliver an appropriate instrument evidencing such release (it being understood that the failure to obtain any such instrument shall not impair any release pursuant to this Section 6.4).

 

26 

 

 

Section 6.5            Benefits Acknowledged. Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.

 

Section 6.6            Waiver of Subrogation. Until all of the Notes are discharged and paid in full, each Subsidiary Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s obligations under the Notes or the Indenture and such Subsidiary Guarantor’s obligations under this Subsidiary Guarantee and the Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy of the Holders of the Notes against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other assets or by set off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Subsidiary Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Holders of the Notes under the Notes or the Indenture, shall not have been paid in full, such amount shall have been deemed to have been paid to such Subsidiary Guarantor for the benefit of, and held in trust for the benefit of, the Trustee or the Holders of the Notes and shall forthwith be paid to the Trustee for the benefit of itself or such Holders to be credited and applied to the obligations in favor of the Trustee or such Holders, as the case may be, whether matured or unmatured, in accordance with the terms of the Indenture.

 

Section 6.7            Same Currency; No Set Off. Each payment to be made by a Subsidiary Guarantor under its Subsidiary Guarantee shall be payable in the currency in which corresponding payment obligations of the Company under the Notes or the Indenture are denominated, and shall be made without set off, counterclaim, reduction or diminution of any kind or nature.

 

Section 6.8            Guarantee Obligations Continuing. The obligations of each Subsidiary Guarantor under the Indenture shall be continuing and shall remain in full force and effect until all such obligations have been paid and satisfied in full. Each Subsidiary Guarantor agrees with the Trustee that, to the fullest extent permitted by applicable law, it will from time to time deliver to the Trustee suitable acknowledgments of this continued liability in such form as counsel to the Trustee may reasonably request and as will prevent any action brought against it in respect of any default under the Indenture being barred by any statute of limitations now or hereafter in force and, in the event of the failure of a Subsidiary Guarantor so to do, it hereby irrevocably appoints the Trustee the attorney and agent of such Subsidiary Guarantor to make, execute and deliver such written acknowledgment or acknowledgments or other instruments as may from time to time become necessary or reasonably advisable, in the judgment of the Trustee on the advice of counsel, to fully maintain and keep in force the liability of such Subsidiary Guarantor under the Indenture.

 

27 

 

 

Section 6.9            No Merger or Waiver; Cumulative Remedies. To the fullest extent permitted by applicable law, no Subsidiary Guarantee shall operate by way of merger of any of the obligations of a Subsidiary Guarantor under any other agreement. To the fullest extent permitted by applicable law, no failure to exercise and no delay in exercising, on the part of the Trustee or the Holders of the Notes, any right, remedy, power or privilege under the Indenture or the Notes, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under the Indenture or the Notes preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. To the fullest extent permitted by applicable law, the rights, remedies, powers and privileges in the Indenture, the Notes and any other document or instrument between a Subsidiary Guarantor and/or the Company and the Trustee and the Holders of the Notes are cumulative and not exclusive of any rights, remedies, powers and privilege provided by law.

 

Section 6.10          Dealing with the Company and Others. The Holders and the Trustee, without releasing, discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities of any Subsidiary Guarantor under the Indenture and without the consent of or notice to any Subsidiary Guarantor, may to the fullest extent permitted by applicable law:

 

(a)           grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other Person;

 

(b)           take or abstain from taking security or collateral from the Company or from perfecting security or collateral of the Company;

 

(c)           release, discharge, compromise, realize, enforce or otherwise deal with or do any act or thing in respect of (with or without consideration) any and all collateral, mortgages or other security given by the Company or any third party with respect to the obligations or matters contemplated by the Indenture or the Notes;

 

(d)           accept compromises or arrangements from the Company;

 

(e)           apply all monies at any time received from the Company or from any security upon such part of the obligations of the Subsidiary Guarantors under Section 6.1 of this Supplemental Indenture as the Holders may see fit or change any such application in whole or in part from time to time as the Holders may see fit; and

 

(f)            otherwise deal with, or waive or modify their right to deal with, the Company and all other Persons and any security as the Holders or the Trustee may see fit.

 

Section 6.11          Enforcement; Expenses. If any Subsidiary Guarantor defaults in performing any of its obligations under the Indenture, the Trustee may proceed in its name as trustee under the Indenture in the enforcement of such obligations against such Subsidiary Guarantor by any remedy provided by law, whether by legal proceedings or otherwise. Each of the Subsidiary Guarantors, jointly and severally, agree to pay all costs, fees and expenses (including, without limitation, reasonable fees and expenses of legal counsel) incurred by the Trustee, any Holder of the Notes, or the agent, advisor or counsel of the Trustee or any Holder, in enforcing the performance by any Subsidiary Guarantor of its obligations under the Indenture.

 

ARTICLE 7

EFFECTIVENESS

 

This Supplemental Indenture shall be effective for all purposes as of the date and time this Supplemental Indenture has been executed and delivered by the Company, the Initial Subsidiary Guarantors and the Trustee in accordance with Article Nine of the Base Indenture. As supplemented hereby, the Base Indenture is hereby confirmed as being in full force and effect.

 

ARTICLE 8

MISCELLANEOUS

 

Section 8.1            Separability. In the event any provision of this Supplemental Indenture shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof or any provision of the Indenture.

 

Section 8.2            Construction of Terms. To the extent that any terms of this Supplemental Indenture or the Notes are inconsistent with the terms of the Base Indenture, the terms of this Supplemental Indenture or the Notes shall govern and supersede such inconsistent terms.

 

Section 8.3            Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.

 

Section 8.4            Governing Law. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

 

28 

 

 

Section 8.5            Counterparts. This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture or in any other certificate, agreement or document related to this Supplemental Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. The Company and the Subsidiary Guarantors agree to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.

 

[Signature Page Follows]

 

29 

 

 

 

IN WITNESS WHEREOF, the Company, the Initial Subsidiary Guarantors and the Trustee have caused this Supplemental Indenture to be executed as an instrument under seal in their respective corporate names as of the date first above written.

 

 

  COMPANY:
   
  DIVERSIFIED HEALTHCARE TRUST
   
  By:           
Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
     
  INITIAL SUBSIDIARY GUARANTORS:
   
  CCC ALPHA INVESTMENTS TRUST
  CCC DELAWARE TRUST
  CCC FINANCING I TRUST
  CCC INVESTMENTS I, L.L.C.
  CCC LEISURE PARK CORPORATION
  CCC PUEBLO NORTE TRUST
  CCC RETIREMENT PARTNERS TRUST
  CCC RETIREMENT TRUST
  CCDE SENIOR LIVING LLC
  CCOP SENIOR LIVING LLC
  CRESTLINE VENTURES LLC
  CSL GROUP, INC.
  DHC HOLDINGS LLC
  ELLICOTT CITY LAND I, LLC
  HRES1 PROPERTIES TRUST
  HRES2 PROPERTIES TRUST
  MSD POOL 1 LLC
  MSD POOL 2 LLC
  O.F.C. CORPORATION
  SNH 30 NEWCROSSING INC.
  SNH AL AIMO II, INC.
  SNH AL AIMO TENANT II, INC.
  SNH AL AIMO TENANT, INC.
  SNH AL AIMO, INC.
  SNH AL CRIMSON TENANT INC.
  SNH AL CUMMING LLC
  SNH AL CUMMING TENANT LLC
  SNH AL GEORGIA HOLDINGS LLC
  SNH AL GEORGIA LLC
  SNH AL GEORGIA TENANT LLC
  SNH AL PROPERTIES LLC
  SNH AL PROPERTIES TRUST
  SNH AL TRS, INC.
  SNH AL WILMINGTON TENANT INC.

 

[Signature Page to Third Supplemental Indenture]

 

 

 

 

  SNH ALPHARETTA LLC
  SNH ALT LEASED PROPERTIES TRUST
  SNH AZ TENANT LLC
  SNH BAKERSFIELD LLC
  SNH BAMA TENANT LLC
  SNH BATON ROUGE (NORTH) LLC
  SNH BATON ROUGE (REALTORS) LLC
  SNH BLAINE INC.
  SNH BRFL PROPERTIES LLC
  SNH BRFL TENANT LLC
  SNH BRIDGEWATER LLC
  SNH CAL TENANT LLC
  SNH CALI TENANT LLC
  SNH CCMD PROPERTIES BORROWER LLC
  SNH CCMD PROPERTIES LLC
  SNH CCMD TENANT LLC
  SNH CHS PROPERTIES TRUST
  SNH CLEAR BROOK LLC
  SNH CLEAR CREEK PROPERTIES TRUST
  SNH CO TENANT LLC
  SNH CONCORD LLC
  SNH DEL TENANT LLC
  SNH DENHAM SPRINGS LLC
  SNH DERBY TENANT LLC
  SNH DURHAM LLC
  SNH FLA TENANT LLC
  SNH FM FINANCING LLC
  SNH FM FINANCING TRUST
  SNH GEORGIA TENANT LLC
  SNH GLENVIEW (PATRIOT) LLC
  SNH GP VALENCIA LLC
  SNH GRANITE GATE LANDS TENANT LLC
  SNH GRANITE GATE LANDS TRUST
  SNH GROVE PARK TENANT LLC
  SNH GROVE PARK TRUST
  SNH HARRISBURG LLC
  SNH IL JOPLIN INC.
  SNH IL PROPERTIES TRUST
  SNH INDEPENDENCE PARK LLC
  SNH INDY TENANT LLC
  SNH JACKSON LLC
  SNH KENT PROPERTIES LLC
  SNH LINCOLN TENANT LLC
  SNH LONGHORN TENANT LLC
  SNH LTF PROPERTIES LLC
  SNH MARYLAND HEIGHTS LLC

 

[Signature Page to Third Supplemental Indenture]

 

 

 

 

  SNH MASS TENANT LLC
  SNH MD TENANT LLC
  SNH MEDICAL OFFICE PROPERTIES LLC
  SNH MEDICAL OFFICE PROPERTIES TRUST
  SNH MEZZCO SAN ANTONIO LLC
  SNH MO TENANT LLC
  SNH MODESTO LLC
  SNH NC TENANT LLC
  SNH NEB TENANT LLC
  SNH NJ TENANT GP LLC
  SNH NJ TENANT LLC
  SNH NM TENANT LLC
  SNH NORTHWOODS LLC
  SNH NORTHWOODS TENANT LLC
  SNH NS PROPERTIES TRUST
  SNH OHIO TENANT LLC
  SNH OMISS TENANT LLC
  SNH PARKVIEW PROPERTIES TRUST
  SNH PENN TENANT LLC
  SNH PHOENIX (COTTON) LLC
  SNH PLAQUEMINE LLC
  SNH PLFL PROPERTIES LLC
  SNH PLFL TENANT LLC
  SNH PRAIRIEVILLE LLC
  SNH PROJ LINCOLN TRS LLC
  SNH REDMOND PROPERTIES LLC
  SNH REIT IRVING LLC
  SNH REIT ROCKWALL LLC
  SNH REIT SAN ANTONIO LLC
  SNH REIT VICTORIA LLC
  SNH RMI FOX RIDGE MANOR PROPERTIES LLC
  SNH RMI JEFFERSON MANOR PROPERTIES LLC
  SNH RMI MCKAY MANOR PROPERTIES LLC
  SNH RMI NORTHWOOD MANOR PROPERTIES LLC
  SNH RMI OAK WOODS MANOR PROPERTIES LLC
  SNH RMI PARK SQUARE MANOR PROPERTIES LLC
  SNH RMI PROPERTIES HOLDING COMPANY LLC
  SNH RMI SMITH FARMS MANOR PROPERTIES LLC
  SNH RMI SYCAMORE MANOR PROPERTIES LLC
  SNH SC TENANT LLC
  SNH SE ASHLEY RIVER LLC
  SNH SE ASHLEY RIVER TENANT LLC
  SNH SE BARRINGTON BOYNTON LLC
  SNH SE BARRINGTON BOYNTON TENANT LLC
  SNH SE BURLINGTON LLC
  SNH SE BURLINGTON TENANT LLC

 

[Signature Page to Third Supplemental Indenture]

 

 

 

 

  SNH SE DANIEL ISLAND LLC
  SNH SE DANIEL ISLAND TENANT LLC
  SNH SE HABERSHAM SAVANNAH LLC
  SNH SE HABERSHAM SAVANNAH TENANT LLC
  SNH SE HOLLY HILL LLC
  SNH SE HOLLY HILL TENANT LLC
  SNH SE KINGS MTN LLC
  SNH SE KINGS MTN TENANT LLC
  SNH SE MOORESVILLE LLC
  SNH SE MOORESVILLE TENANT LLC
  SNH SE N. MYRTLE BEACH LLC
  SNH SE N. MYRTLE BEACH TENANT LLC
  SNH SE PROPERTIES LLC
  SNH SE PROPERTIES TRUST
  SNH SE SG LLC
  SNH SE SG TENANT LLC
  SNH SE TENANT 2 TRS, INC.
  SNH SE TENANT TRS, INC.
  SNH SOMERFORD PROPERTIES TRUST
  SNH ST. LOUIS LLC
  SNH TEANECK PROPERTIES LLC
  SNH TEANECK TENANT LLC
  SNH TELLICO TENANT LLC
  SNH TELLICO TRUST
  SNH TEMPE LLC
  SNH TENN TENANT LLC
  SNH TOTO TENANT LLC
  SNH TRS INC.
  SNH TRS LICENSEE HOLDCO LLC
  SNH VA TENANT LLC
  SNH VIKING TENANT LLC
  SNH WARD AVE. PROPERTIES I INC.
  SNH WELL PROPERTIES GA-MD LLC
  SNH WELL PROPERTIES TRUST
  SNH WILMINGTON LLC
  SNH WIS TENANT LLC
  SNH WY TENANT LLC
  SNH YONKERS PROPERTIES TRUST
  SNH YONKERS TENANT INC.
  SNH/CSL PROPERTIES TRUST
  SNH/LTA PROPERTIES GA LLC
  SNH/LTA PROPERTIES TRUST
  SNH/LTA SE HOME PLACE NEW BERN LLC
  SNH/LTA SE MCCARTHY NEW BERN LLC
  SNH/LTA SE WILSON LLC

 

[Signature Page to Third Supplemental Indenture]

 

 

 

 

  SPTGEN PROPERTIES TRUST
  SPTIHS PROPERTIES TRUST
  SPTMISC PROPERTIES TRUST
  SPTMNR PROPERTIES TRUST
  SPTMRT PROPERTIES TRUST
  SPTSUN II PROPERTIES TRUST
   
  By:  
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  LEXINGTON OFFICE REALTY TRUST
  SNH MEDICAL OFFICE REALTY TRUST
   
  By:  
    Richard W. Siedel, Jr.,
    as Trustee and not individually
   
  CCC FINANCING LIMITED, L.P.
   
  By: CCC RETIREMENT TRUST,
    its general partner
   
  By:  
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  CCC RETIREMENT COMMUNITIES II, L.P.
   
  By: CRESTLINE VENTURES LLC,
    its general partner
   
  By:  
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer

 

[Signature Page to Third Supplemental Indenture]

 

 

 

 

  LEISURE PARK VENTURE LIMITED PARTNERSHIP
   
  By: CCC LEISURE PARK CORPORATION,
    its general partner
   
  By:  
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  SNH NJ TENANT LP
   
  By: SNH NJ TENANT GP LLC,
    its general partner
   
  By:  
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  SNH VALENCIA LP
   
  By: SNH GP VALENCIA LLC,
    its general partner
   
  By:  
    Name: Richard W. Siedel, Jr.
    Title: Chief Financial Officer and Treasurer
   
  TRUSTEE:
   
  U.S. BANK NATIONAL ASSOCIATION, as Trustee
   
  By:  
    Name: David W. Doucette
    Title: Vice President

 

[Signature Page to Third Supplemental Indenture]

 

 

 

 

EXHIBIT A

 

FORM OF NOTE

 

[Form of Face of Security]

 

[Insert Applicable Legends]

 

DIVERSIFIED HEALTHCARE TRUST

 

9.750% Senior Notes due 2025

 

No. ____ $ ___________

 

Diversified Healthcare Trust (formerly known as Senior Housing Properties Trust), a real estate investment trust duly organized and existing under the laws of Maryland (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________________, or registered assigns, the principal sum of ___________________ Dollars ($_____________) [(as the same may be revised from time to time on the Schedule of Exchanges of Interests in the Global Security attached hereto)] on June 15, 2025, and to pay interest thereon from _________, 20__ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 15 and December 15 in each year, commencing _________, 20__ at the rate of 9.750% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts or, in the case of any Note that is a Global Security, in accordance with the procedures of The Depository Trust Company (“DTC”), or any successor depositary with respect to the Global Notes appointed under the Indenture, the “Depositary”), and its participants in effect from time to time; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A-1

 

 

THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING DIVERSIFIED HEALTHCARE TRUST, DATED SEPTEMBER 20, 1999, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF DIVERSIFIED HEALTHCARE TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, DIVERSIFIED HEALTHCARE TRUST. ALL PERSONS DEALING WITH DIVERSIFIED HEALTHCARE TRUST IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF DIVERSIFIED HEALTHCARE TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: DIVERSIFIED HEALTHCARE TRUST
   
  By:  
    Name:
    Title:

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  U.S. BANK NATIONAL ASSOCIATION, as Trustee
   
  By:                
    Name:
    Title:

 

A-2

 

 

[Form of Reverse of Security]

 

1.       General. This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 18, 2016 (the “Base Indenture”), between the Company and U.S. Bank National Association (herein called the “Trustee”, which term includes any successor trustee under the Base Indenture), as supplemented by a Third Supplemental Indenture, dated as of June 2, 2020 (as amended, supplemented or otherwise modified from time to time, the “Supplemental Indenture” and the Base Indenture, as supplemented by such Supplemental Indenture, the “Indenture”), among the Company, the Initial Subsidiary Guarantors and the Trustee, and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantors, the Trustee, and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof (such series, the “Notes”). Capitalized terms used but not defined herein have the meaning given to them in the Indenture.

 

2.       Optional Redemption. The Notes will be subject to redemption in whole at any time or in part from time to time before they mature at the option of the Company upon not less than 15 nor more than 60 days’ notice by mail to each Holder of Notes to be redeemed at its address appearing in the Security Register or, in the case of any Note that is a Global Security, in accordance with the procedures of the Depositary and its participants in effect from time to time. On and after June 15, 2022, the Company may redeem the Notes at its option, in whole or from time to time in part, at the following Redemption Prices (expressed as a percentage of principal amount) plus accrued and unpaid interest, if any, on the Notes being redeemed to, but not including, the Redemption Date, if redeemed during the twelve-month period beginning on June 15 of the years indicated below:

 

Year  Percentage 
2022   104.875%
2023   102.438%
2024 and thereafter   100.000%

 

Prior to June 15, 2022, the Company may, at its option, on any one or more occasions, redeem up to 40% of the original aggregate principal amount of Notes (including the original aggregate principal amount of any Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a Redemption Price (expressed as a percentage of the principal amount thereof) of 109.750% plus accrued and unpaid interest, if any, to, but not including, the Redemption Date; provided that

 

(1) at least 50% of the original aggregate principal amount of the Notes (including the original aggregate principal amount of any Additional Notes) remains outstanding after each such redemption; and

 

(2) the Redemption Date occurs within 90 days after the closing of such Equity Offering (for purposes of clarity, in the event that there are two or more closings for any Equity Offering, then each such closing shall be deemed a separate “closing” for purposes of the foregoing provisions of this clause (2) with respect to the securities issued at such closing).

 

In addition, the Company may redeem the Notes at its option, in whole or from time to time in part, at any time prior to June 15, 2022, at a Redemption Price equal to the outstanding principal amount of the Notes being redeemed, plus accrued and unpaid interest, if any, on the Notes being redeemed, to, but not including, the Redemption Date, plus the Make-Whole Amount, if any.

 

As used herein the term “Make-Whole Amount” means, in connection with any redemption of any Note whose Redemption Price is to be determined by reference to the Make-Whole Amount, the greater of:

 

(1)1.0% of the principal amount of such Note; and

 

A-3

 

 

(2)the excess, if any, of (i) the aggregate present value as of the applicable Redemption Date of the Redemption Price of such Note that would apply if such Note were redeemed on June 15, 2022 (such Redemption Price (expressed as a percentage of principal amount) being set forth in the table above) and the amount of interest (exclusive of interest accrued to the Redemption Date) that would have been payable in respect of each dollar of principal of such Note being redeemed if such redemption had been made on June 15, 2022 determined by discounting, on a semiannual basis, such Redemption Price and interest at the Reinvestment Rate (determined on the third Business Day preceding the date such notice of redemption relating to such redemption is given) from June 15, 2022 (in the case of such Redemption Price) and, in the case of interest, from respective dates on which such interest would have been payable if such redemption had been made on June 15, 2022 over (ii) the aggregate principal amount of such Note being redeemed.

 

The Make-Whole Amount shall be calculated by the Company and set forth in an Officer’s Certificate delivered to the Trustee, and the Trustee shall be entitled to rely on said Officer’s Certificate.

 

As used herein the term “Reinvestment Rate” means a rate per annum equal to the sum of 0.50% (fifty one hundredths of one percent) plus the arithmetic mean of the yields on treasury securities at constant maturity displayed for each of the five most recent days published in the Statistical Release under the caption “Treasury Constant Maturities” for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity (which, in the case of maturities corresponding to the principal and interest due on the Notes at their maturity, shall be deemed to be June 15, 2022), as of the Redemption Date of the principal being redeemed. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such remaining life to maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used.

 

As used herein the term “Statistical Release” means the statistical release designated “H.15” or any successor publication which is published daily by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities or, if such statistical release (or any successor publication) is not published at the time of any determination under the Indenture, then any publicly available source of similar market data used for this purpose in accordance with customary market practice which shall be designated by the Company.

 

The Company shall not be required to make sinking fund or redemption payments with respect to the Notes. However, under certain circumstances in connection with the occurrence of a Change of Control, the Company may be required to offer to the repurchase the Notes as provided for under Section 3.1(f) of the Supplemental Indenture.

 

In the event of redemption of this Security in part only, a new Note or Notes and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

 

3.       Discharge and Defeasance. The Indenture contains provisions for discharge or defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

 

4.       Defaults and Remedies. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes, plus accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture.

 

5.       Actions of Holders. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

A-4

 

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or this Security or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than a majority in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

6.       Payments Not Impaired. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

7.       Denominations, Transfer, Exchange. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

8.       Persons Deemed Owners. Prior to due presentment of this Security for registration of transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of the Company, any Subsidiary Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor any such agent shall be affected by notice to the contrary.

 

9.       Subsidiary Guarantees. The Notes will be entitled to the benefits of certain Subsidiary Guarantees made for the benefit of the Holders of the Notes. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Subsidiary Guarantors, the Trustee and the Holders.

 

10.       Defined Terms. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

A-5

 

 

[ASSIGNMENT FORM]

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian  
TEN ENT -- as tenants by the entireties (Cust)  (Minor)
JT TEN -- as joint tenants with right of survivorship and not as tenants in common  Under Uniform Gifts to Minors Act
       
         (State)   

 

Additional abbreviations may also be used though not in the above list.

 

______________________________________

 

FOR VALUE RECEIVED, the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

 

     
     
     

 

 

 

 

 

PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE

 

 

 

the within security and all rights thereunder, hereby irrevocably constituting and appointing

 

 

                                                                                                                                                                                                                                                                     

Attorney to transfer said security on the books of the Company with full power of substitution in the premises.

 

Dated:     Signed:                                                    
     
    Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within security in every particular, without alteration or enlargement or any change whatever.
     
    Signature Guarantee*:___________________
     
    * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-6

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Security purchased by the Company pursuant to a Change of Control Offer, check the box below:

 

¨          Change of Control Offer

 

If you want to elect to have only part of this Security purchased by the Company pursuant to a Change of Control Offer, state the amount you elect to have purchased (must be a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof; provided that the remaining principal amount of this Security after such partial purchase must not be less than $2,000 in principal amount):  $___________

 

Date:                                      Your Signature:                           
    (Sign exactly as your name appears on the Note)
      
    Tax Identification No.:   
      

 

Signature Guarantee*:                                                                                                  

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee)

 

A-7

 

 

[Include this Schedule only for a Global Security]

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL Security

 

The initial principal amount of this Global Security is $[●].

 

The following exchanges, transfers or cancellations of this Global Security have been made:

 

Date of

Exchange 

  Amount of
Decrease in
Principal
Amount of this
Global Security
  Amount of
Increase in
Principal
Amount of this
Global Security
  Principal
Amount of this
Global Security
Following Such
Decrease (or
Increase)
  Signature of
Authorized
Officer of
Trustee 

 

A-8

 

 

Exhibit 5.1

 

 

May 28, 2020

 

Diversified Healthcare Trust

Two Newton Place

255 Washington Street, Suite 300

Newton, Massachusetts 02458

 

Re:           Diversified Healthcare Trust

9.750% Senior Notes due 2025

 

Ladies and Gentlemen:

 

We have acted as counsel to Diversified Healthcare Trust, a Maryland real estate investment trust (the “Company”), and each of the subsidiaries of the Company listed on Schedule I hereto (the “Guarantors”) in connection with (i) the Company’s authorization for the issuance and sale of an aggregate of $1.0 billion in principal amount of the Company’s 9.750% Senior Notes due 2025 (the “Notes”), which will be guaranteed by the Guarantors (the “Guarantees”), to be issued pursuant to an Indenture, dated as of February 18, 2016 (the “Base Indenture”), between the Company and U.S. Bank National Association, as Trustee (the “Trustee”), to be supplemented by the Third Supplemental Indenture, to be dated on or about June 2, 2020 (the “Supplemental Indenture”), among the Company, the Guarantors and the Trustee (the Base Indenture, as so supplemented by the Supplemental Indenture, the “Indenture”). We understand that the Notes are to be offered and sold under the Company’s Registration Statement on Form S-3, No. 333-225831, as amended by Post-Effective Amendment No. 1 thereto (the “Registration Statement”).

 

In connection with this opinion, we have examined and relied upon copies of (i) the Certificate of Formation or Certificate of Limited Partnership, as applicable, and the limited liability company agreement or limited partnership agreement, as applicable, of each of the Guarantors listed on Schedule II hereto (the “Delaware Guarantors”), (ii) the Declaration of Trust of Lexington Office Realty Trust and SNH Medical Office Realty Trust, each a Massachusetts Nominee Trust (the “Massachusetts Guarantors”), (iii) the Registration Statement, (iv) the final Prospectus dated May 28, 2020 (the “Base Prospectus”) relating to the Registration Statement, (v) the final Prospectus Supplement to the Base Prospectus dated May 28, 2020, relating to the Notes and the Guarantees (the “Prospectus Supplement” and the Base Prospectus, as supplemented thereby, the “Prospectus”), (vi) the Indenture, (vii) resolutions adopted by the Board of Trustees of the Company on May 27, 2020, and resolutions adopted by an Ad Hoc Pricing Committee of the Board of Trustees of the Company on May 28, 2020, each relating to the Notes and the Guarantees, and (viii) resolutions adopted by the board of directors or comparable governing body of the Delaware Guarantors and the Massachusetts Guarantors. We have also examined and relied upon originals or copies of such records, agreements and instruments of the Company and the Guarantors, certificates of public officials and of officers of the Company and the Guarantors and such other documents and records, and such matters of law, as we have deemed necessary as a basis for the opinions hereinafter expressed. In rendering this opinion, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and the conformity to the authentic original documents of all documents submitted to us as copies. As to any facts material to the opinions expressed herein, we have relied without independent verification upon certificates of public officials, upon statements of officers or other representatives of the Company and statements of fact contained in documents we have examined.

 

 

 

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 2

 

We have assumed for purposes of this opinion that the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified to engage in the activities contemplated by, and has the requisite organizational and legal power and authority to perform its obligations under, the Indenture, that the Trustee is in compliance, generally with respect to acting as a trustee under the Indenture, with all applicable laws and regulations, and that the Indenture is and will be the valid and binding agreement of the Trustee, enforceable against the Trustee in accordance with its terms.

 

We express no opinion herein as to any laws other than the laws of the State of New York, the Limited Liability Company Act of the State of Delaware (the “Delaware LLC Act”), the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and the federal laws of the United States. In connection with our opinions herein relating to the Delaware LLC Act and the Delaware LP Act, we call to your attention that such opinions are based solely upon our examination of the Delaware LLC Act and the Delaware LP Act as currently in effect (without regard to judicial interpretations thereof or rules or regulations promulgated thereunder). We are not admitted to practice law in the State of Delaware, and we expressly disclaim any opinions regarding Delaware contract law or general Delaware law that may be incorporated expressly or by operation of law into the Delaware LLC Act or the Delaware LP Act or into any limited liability company operating agreement, limited partnership agreement or other document entered into pursuant thereto. Insofar as this opinion involves matters of Maryland and/or Indiana law we have, with the Company’s permission, relied solely upon the opinions of Venable LLP and Taft Stettinius & Hollister LLP, copies of which we understand the Company is filing as Exhibits 5.2 and 5.3, respectively, to its Current Report on Form 8-K, to be dated on or about May 28, 2020 (the “Current Report”), and with respect to matters involving Maryland and Indiana law our opinion is subject to the exceptions, limitations and qualifications set forth in such opinions.

 

Our opinion set forth below with respect to the good standing of the Delaware Guarantors in the State of Delaware is based solely upon certificates, dated various dates and delivered to you by the Company, to such effect issued by the Secretary of State of the State of Delaware.

 

Our opinion set forth below with respect to the validity or binding effect of the Notes or any obligations may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, marshaling, moratorium or other similar laws affecting the enforcement generally of the rights and remedies of creditors and secured parties or the obligations of debtors, (ii) general principles of equity (whether considered in a proceeding in equity or at law), including but not limited to principles limiting the availability of specific performance or injunctive relief, and concepts of materiality, reasonableness, good faith and fair dealing, (iii) the possible unenforceability under certain circumstances of provisions providing for indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, and (iv) the effect of course of dealing, course of performance, oral agreements or the like that would modify the terms of an agreement or the respective rights or obligations of the parties under an agreement.

 

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 3

 

Based on and subject to the foregoing, we are of the opinion that, as of the date hereof, (1) each of the Delaware Guarantors is a limited liability company or limited partnership duly formed and validly existing under the laws of the State of Delaware and in good standing with the Secretary of State of the State of Delaware, (2) the Massachusetts Guarantors exist as trusts under the laws of the Commonwealth of Massachusetts and (3) the Guarantees by the Delaware Guarantors and the Massachusetts Guarantors have been duly authorized by the Delaware Guarantors and the Massachusetts Guarantors, respectively, and, when the Notes have been (A) duly executed and delivered by the Company and authenticated by the Trustee as provided in the Indenture, and (B) duly delivered to the purchasers thereof against payment of the agreed consideration therefor, as provided in the Registration Statement, the Notes and the Guarantees will constitute valid and binding obligations of the Company and the Guarantors, as applicable, enforceable against the Company and the Guarantors, as the case may be, in accordance with their respective terms.

 

The opinions set forth herein are rendered as of the date hereof, and we assume no obligation to update such opinions to reflect any facts or circumstances which may hereafter come to our attention or any changes in the law which may hereafter occur. This opinion is rendered to you in connection with the offering of the Notes and the Guarantees under the Prospectus. We hereby consent to the filing of a copy of this opinion as Exhibit 5.1 to the Current Report, which is incorporated by reference into the Registration Statement and the Prospectus, and to references to our firm under the caption “Legal Matters” in the Base Prospectus and in the Prospectus Supplement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or under the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Very truly yours,

 

/s/ Sullivan & Worcester LLP

 

SULLIVAN & WORCESTER LLP

 

 

 

 

Schedule I

 

Guarantors

 

CCC Alpha Investments Trust

 

CCC Delaware Trust

 

CCC Financing I Trust

 

CCC Financing Limited, L.P.

 

CCC Investments I, L.L.C.

 

CCC Leisure Park Corporation

 

CCC Pueblo Norte Trust

 

CCC Retirement Communities II, L.P.

 

CCC Retirement Partners Trust

 

CCC Retirement Trust

 

CCDE Senior Living LLC

 

CCOP Senior Living LLC

 

Crestline Ventures LLC

 

CSL Group, Inc.

 

DHC Holdings LLC

 

Ellicott City Land I, LLC

 

HRES1 Properties Trust

 

HRES2 Properties Trust

 

Leisure Park Venture Limited Partnership

 

Lexington Office Realty Trust

 

MSD Pool 1 LLC

 

MSD Pool 2 LLC

 

O.F.C. Corporation

 

SNH 30 Newcrossing Inc.

 

SNH AL AIMO II, Inc.

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 5

 

SNH AL AIMO Tenant II, Inc.

 

SNH AL AIMO Tenant, Inc.

 

SNH AL AIMO, Inc.

 

SNH AL Crimson Tenant Inc.

 

SNH AL Cumming LLC

 

SNH AL Cumming Tenant LLC

 

SNH AL Georgia Holdings LLC

 

SNH AL Georgia LLC

 

SNH AL Georgia Tenant LLC

 

SNH AL Properties LLC

 

SNH AL Properties Trust

 

SNH AL TRS, Inc.

 

SNH AL Wilmington Tenant Inc.

 

SNH Alpharetta LLC

 

SNH ALT Leased Properties Trust

 

SNH AZ Tenant LLC

 

SNH Bakersfield LLC

 

SNH BAMA Tenant LLC

 

SNH Baton Rouge (North) LLC

 

SNH Baton Rouge (Realtors) LLC

 

SNH Blaine Inc.

 

SNH BRFL Properties LLC

 

SNH BRFL Tenant LLC

 

SNH Bridgewater LLC

 

SNH CAL Tenant LLC

 

SNH CALI Tenant LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 6

 

SNH CCMD Properties Borrower LLC

 

SNH CCMD Properties LLC

 

SNH CCMD Tenant LLC

 

SNH CHS Properties Trust

 

SNH Clear Brook LLC

 

SNH Clear Creek Properties Trust

 

SNH CO Tenant LLC

 

SNH Concord LLC

 

SNH DEL Tenant LLC

 

SNH Denham Springs LLC

 

SNH Derby Tenant LLC

 

SNH Durham LLC

 

SNH FLA Tenant LLC

 

SNH FM Financing LLC

 

SNH FM Financing Trust

 

SNH Georgia Tenant LLC

 

SNH Glenview (Patriot) LLC

 

SNH GP Valencia LLC

 

SNH Granite Gate Lands Tenant LLC

 

SNH Granite Gate Lands Trust

 

SNH Grove Park Tenant LLC

 

SNH Grove Park Trust

 

SNH Harrisburg LLC

 

SNH IL Joplin Inc.

 

SNH IL Properties Trust

 

SNH Independence Park LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 7

 

SNH INDY Tenant LLC

 

SNH Jackson LLC

 

SNH Kent Properties LLC

 

SNH Lincoln Tenant LLC

 

SNH Longhorn Tenant LLC

 

SNH LTF Properties LLC

 

SNH Maryland Heights LLC

 

SNH MASS Tenant LLC

 

SNH MD Tenant LLC

 

SNH Medical Office Properties LLC

 

SNH Medical Office Properties Trust

 

SNH Medical Office Realty Trust

 

SNH MezzCo San Antonio LLC

 

SNH MO Tenant LLC

 

SNH Modesto LLC

 

SNH NC Tenant LLC

 

SNH Neb Tenant LLC

 

SNH NJ Tenant GP LLC

 

SNH NJ Tenant LLC

 

SNH NJ Tenant LP

 

SNH NM Tenant LLC

 

SNH Northwoods LLC

 

SNH Northwoods Tenant LLC

 

SNH NS Properties Trust

 

SNH Ohio Tenant LLC

 

SNH OMISS Tenant LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 8

 

SNH Parkview Properties Trust

 

SNH PENN Tenant LLC

 

SNH Phoenix (Cotton) LLC

 

SNH Plaquemine LLC

 

SNH PLFL Properties LLC

 

SNH PLFL Tenant LLC

 

SNH Prairieville LLC

 

SNH Proj Lincoln TRS LLC

 

SNH Redmond Properties LLC

 

SNH REIT Irving LLC

 

SNH REIT Rockwall LLC

 

SNH REIT San Antonio LLC

 

SNH REIT Victoria LLC

 

SNH RMI Fox Ridge Manor Properties LLC

 

SNH RMI Jefferson Manor Properties LLC

 

SNH RMI McKay Manor Properties LLC

 

SNH RMI Northwood Manor Properties LLC

 

SNH RMI Oak Woods Manor Properties LLC

 

SNH RMI Park Square Manor Properties LLC

 

SNH RMI Properties Holding Company LLC

 

SNH RMI Smith Farms Manor Properties LLC

 

SNH RMI Sycamore Manor Properties LLC

 

SNH SC Tenant LLC

 

SNH SE Ashley River LLC

 

SNH SE Ashley River Tenant LLC

 

SNH SE Barrington Boynton LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 9

 

SNH SE Barrington Boynton Tenant LLC

 

SNH SE Burlington LLC

 

SNH SE Burlington Tenant LLC

 

SNH SE Daniel Island LLC

 

SNH SE Daniel Island Tenant LLC

 

SNH SE Habersham Savannah LLC

 

SNH SE Habersham Savannah Tenant LLC

 

SNH SE Holly Hill LLC

 

SNH SE Holly Hill Tenant LLC

 

SNH SE Kings Mtn LLC

 

SNH SE Kings Mtn Tenant LLC

 

SNH SE Mooresville LLC

 

SNH SE Mooresville Tenant LLC

 

SNH SE N. Myrtle Beach LLC

 

SNH SE N. Myrtle Beach Tenant LLC

 

SNH SE Properties LLC

 

SNH SE Properties Trust

 

SNH SE SG LLC

 

SNH SE SG Tenant LLC

 

SNH SE Tenant 2 TRS, Inc.

 

SNH SE Tenant TRS, Inc.

 

SNH Somerford Properties Trust

 

SNH St. Louis LLC

 

SNH Teaneck Properties LLC

 

SNH Teaneck Tenant LLC

 

SNH Tellico Tenant LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 10

 

SNH Tellico Trust

 

SNH Tempe LLC

 

SNH TENN Tenant LLC

 

SNH Toto Tenant LLC

 

SNH TRS Inc.

 

SNH TRS Licensee Holdco LLC

 

SNH VA Tenant LLC

 

SNH Valencia LP

 

SNH Viking Tenant LLC

 

SNH Ward Ave. Properties I Inc.

 

SNH Well Properties GA-MD LLC

 

SNH Well Properties Trust

 

SNH Wilmington LLC

 

SNH WIS Tenant LLC

 

SNH WY Tenant LLC

 

SNH Yonkers Properties Trust

 

SNH Yonkers Tenant Inc.

 

SNH/CSL Properties Trust

 

SNH/LTA Properties GA LLC

 

SNH/LTA Properties Trust

 

SNH/LTA SE Home Place New Bern LLC

 

SNH/LTA SE McCarthy New Bern LLC

 

SNH/LTA SE Wilson LLC

 

SPTGEN Properties Trust

 

SPTIHS Properties Trust

 

SPTMISC Properties Trust

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 11

 

SPTMNR Properties Trust

 

SPTMRT Properties Trust

 

SPTSUN II Properties Trust

 

 

 

 

Schedule II

 

Delaware Guarantors

 

CCC Leisure Park Corporation

 

CCC Investments I, L.L.C.

 

CCDE Senior Living LLC

 

CCOP Senior Living LLC

 

Crestline Ventures LLC

 

Ellicott City Land I, LLC

 

SNH Alpharetta LLC

 

SNH Baton Rouge (North) LLC

 

SNH Baton Rouge (Realtors) LLC

 

SNH BRFL Properties LLC

 

SNH BRFL Tenant LLC

 

SNH Bridgewater LLC

 

SNH CALI Tenant LLC

 

SNH CCMD Properties Borrower LLC

 

SNH CCMD Properties LLC

 

SNH CCMD Tenant LLC

 

SNH Clear Brook LLC

 

SNH Concord LLC

 

SNH Denham Springs LLC

 

SNH Durham LLC

 

SNH FM Financing LLC

 

SNH Glenview (Patriot) LLC

 

SNH GP Valencia LLC

 

SNH Harrisburg LLC

 

SNH Independence Park LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 13

 

SNH Jackson LLC

 

SNH Maryland Heights LLC

 

SNH Medical Office Properties LLC

 

SNH MezzCo San Antonio LLC

 

SNH Phoenix (Cotton) LLC

 

SNH Plaquemine LLC

 

SNH PLFL Properties LLC

 

SNH PLFL Tenant LLC

 

SNH Prairieville LLC

 

SNH REIT Irving LLC

 

SNH REIT Rockwall LLC

 

SNH REIT San Antonio LLC

 

SNH REIT Victoria LLC

 

SNH SE Ashley River LLC

 

SNH SE Ashley River Tenant LLC

 

SNH SE Barrington Boynton LLC

 

SNH SE Barrington Boynton Tenant LLC

 

SNH SE Burlington LLC

 

SNH SE Burlington Tenant LLC

 

SNH SE Daniel Island LLC

 

SNH SE Daniel Island Tenant LLC

 

SNH SE Habersham Savannah LLC

 

SNH SE Habersham Savannah Tenant LLC

 

SNH SE Holly Hill LLC

 

SNH SE Holly Hill Tenant LLC

 

SNH SE Kings Mtn LLC

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 14

 

SNH SE Kings Mtn Tenant LLC

 

SNH SE Mooresville LLC

 

SNH SE Mooresville Tenant LLC

 

SNH SE N. Myrtle Beach LLC

 

SNH SE N. Myrtle Beach Tenant LLC

 

SNH SE Properties LLC

 

SNH SE SG LLC

 

SNH SE SG Tenant LLC

 

SNH St. Louis LLC

 

SNH Teaneck Properties LLC

 

SNH Teaneck Tenant LLC

 

SNH Tempe LLC

 

SNH Well Properties GA-MD LLC

 

SNH/LTA SE Home Place New Bern LLC

 

SNH/LTA SE McCarthy New Bern LLC

 

SNH/LTA SE Wilson LLC

 

CCC Financing Limited, L.P.

 

CCC Retirement Communities II, L.P.

 

Leisure Park Venture Limited Partnership

 

SNH NJ Tenant LP

 

SNH Valencia LP

 

 

 

Exhibit 5.2

 

[LETTERHEAD OF VENABLE LLP]

 

May 28, 2020

 

 

Diversified Healthcare Trust
Two Newton Place

255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634

 

Re:Registration Statement on Form S-3 (File No. 333-225831)

 

Ladies and Gentlemen:

 

We have served as Maryland counsel to Diversified Healthcare Trust, a Maryland real estate investment trust (the “Company”), and the Company’s subsidiaries identified on Schedule I hereto (the “Subsidiaries”), in connection with certain matters of Maryland law arising out of the sale and issuance of $1,000,000,000 aggregate principal amount of the Company’s 9.750% Senior Notes due 2025 (the “Notes”), and the guarantees by the Subsidiaries (the “Guarantees”) of the obligations of the Company under the Notes, in an underwritten public offering, covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).

 

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):

 

1.                  The Registration Statement and the Prospectus included therein;

 

2.                  The Prospectus Supplement, dated May 28, 2020, in the form to be filed by the Company with the Commission pursuant to Rule 424(b) under the 1933 Act;

 

3.                  The Amended and Restated Declaration of Trust of the Company, as amended and supplemented, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

 

4.                  The Amended and Restated Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company;

 

5.                  The Declarations of Trust of each of the Trust Subsidiaries (as defined on Schedule I), certified by the SDAT;

 

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 2

 

6.                  The Bylaws of each of the Trust Subsidiaries, certified as of the date hereof by an officer of each of the Trust Subsidiaries;

 

7.                  The Articles of Organization of each of the LLC Subsidiaries (as defined on Schedule I), certified by the SDAT;

 

8.                  The Operating Agreements of each of the LLC Subsidiaries, certified as of the date hereof by an officer of each of the LLC Subsidiaries;

 

9.                  The Charters of each of the Corporate Subsidiaries (as defined on Schedule I), certified by the SDAT;

 

10.                The Bylaws of each of the Corporate Subsidiaries, certified as of the date hereof by an officer of each of the Corporate Subsidiaries;

 

11.                Certificates of the SDAT as to the good standing of the Company and the Subsidiaries, dated as of a recent date;

 

12.                Resolutions adopted by the Board of Trustees of the Company, and a duly authorized committee thereof, relating to the authorization of the issuance of the Notes (the “Company Resolutions”), certified as of the date hereof by an officer of the Company;

 

13.                Resolutions adopted by the Board of Trustees, Managing Members or the Board of Directors, as the case may be, of the Subsidiaries, relating to the Guarantees, certified as of the date hereof by an officer of each of the Subsidiaries;

 

14.                A certificate executed by an officer of the Company and each of the Subsidiaries, dated as of the date hereof; and

 

15.                Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

 

In expressing the opinion set forth below, we have assumed the following:

 

1.                  Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

 

2.                  Each individual executing any of the Documents on behalf of a party (other than the Company and the Subsidiaries) is duly authorized to do so.

 

3.                  Each of the parties (other than the Company and the Subsidiaries) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

 

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 3

 

4.                  All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

 

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

 

1.                  The Company is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

 

2.                  Each of the Trust Subsidiaries is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT. Each of the LLC Subsidiaries is a limited liability company duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT. Each of the Corporate Subsidiaries is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

 

3.                  The issuance of the Notes has been duly authorized and, when issued and delivered by the Company against payment therefor pursuant to the Company Resolutions and otherwise in accordance with the Registration Statement, the Notes will be validly issued.

 

4.                  The execution, delivery and performance of the Guarantees by the Subsidiaries have been duly authorized by the Subsidiaries.

 

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with, or the applicability of, federal or state securities laws, including the securities laws of the State of Maryland.

 

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

 

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the issuance of the Notes (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

 

  Very truly yours,
   
   /s/ Venable LLP

 

 

 

 

SCHEDULE I

 

Trust Subsidiaries

 

Subsidiaries that are Maryland real estate investment trusts (the “Trust Subsidiaries”)

 

1.CCC Alpha Investments Trust
2.CCC Delaware Trust
3.CCC Financing I Trust
4.CCC Pueblo Norte Trust
5.CCC Retirement Partners Trust
6.CCC Retirement Trust
7.SNH/CSL Properties Trust
8.SNH/LTA Properties Trust
9.SNH AL Properties Trust
10.SNH ALT Leased Properties Trust
11.SNH CHS Properties Trust
12.SNH Clear Creek Properties Trust
13.SNH FM Financing Trust
14.SNH Granite Gate Lands Trust
15.SNH Grove Park Trust
16.SNH IL Properties Trust
17.SNH Medical Office Properties Trust
18.SNH NS Properties Trust
19.SNH Parkview Properties Trust
20.SNH SE Properties Trust
21.SNH Somerford Properties Trust
22.SNH Tellico Trust
23.SNH Well Properties Trust
24.SNH Yonkers Properties Trust
25.SPTGEN Properties Trust
26.SPTIHS Properties Trust
27.SPTMISC Properties Trust
28.SPTMNR Properties Trust
29.SPTMRT Properties Trust
30.SPTSUN II Properties Trust
31.HRES1 Properties Trust
32.HRES2 Properties Trust

 

LLC Subsidiaries

 

Subsidiaries that are Maryland limited liability companies (the “LLC Subsidiaries”)

 

33.DHC Holdings LLC
34.MSD Pool 1 LLC
35.MSD Pool 2 LLC

 

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 5

 

36.SNH/LTA Properties GA LLC
37.SNH AL Cumming LLC
38.SNH AL Cumming Tenant LLC
39.SNH AL Georgia LLC
40.SNH AL Georgia Tenant LLC
41.SNH AL Georgia Holdings LLC
42.SNH AL Properties LLC
43.SNH AZ Tenant LLC
44.SNH Bakersfield LLC
45.SNH BAMA Tenant LLC
46.SNH CAL Tenant LLC
47.SNH CO Tenant LLC
48.SNH DEL Tenant LLC
49.SNH Derby Tenant LLC
50.SNH FLA Tenant LLC
51.SNH Georgia Tenant LLC
52.SNH Granite Gate Lands Tenant LLC
53.SNH Grove Park Tenant LLC
54.SNH INDY Tenant LLC
55.SNH Kent Properties LLC
56.SNH Lincoln Tenant LLC
57.SNH Longhorn Tenant LLC
58.SNH LTF Properties LLC
59.SNH MASS Tenant LLC
60.SNH MD Tenant LLC
61.SNH MO Tenant LLC
62.SNH Modesto LLC
63.SNH NC Tenant LLC
64.SNH Neb Tenant LLC
65.SNH NJ Tenant GP LLC
66.SNH NJ Tenant LLC
67.SNH NM Tenant LLC
68.SNH Northwoods LLC
69.SNH Northwoods Tenant LLC
70.SNH Ohio Tenant LLC
71.SNH OMISS Tenant LLC
72.SNH PENN Tenant LLC
73.SNH Proj Lincoln TRS  LLC
74.SNH Redmond Properties LLC
75.SNH RMI Fox Ridge Manor Properties LLC
76.SNH RMI Jefferson Manor Properties LLC
77.SNH RMI McKay Manor Properties LLC
78.SNH RMI Northwood Manor Properties LLC

 

 

 

 

Diversified Healthcare Trust

May 28, 2020

Page 6

 

79.SNH RMI Oak Woods Manor Properties LLC
80.SNH RMI Park Square Manor Properties LLC
81.SNH RMI Properties Holding Company LLC
82.SNH RMI Smith Farms Manor Properties LLC
83.SNH RMI Sycamore Manor Properties LLC
84.SNH SC Tenant LLC
85.SNH Tellico Tenant LLC
86.SNH TENN Tenant LLC
87.SNH Toto Tenant LLC
88.SNH TRS Licensee Holdco LLC
89.SNH VA Tenant LLC
90.SNH Viking Tenant LLC
91.SNH Wilmington LLC
92.SNH WIS Tenant LLC 
93.SNH WY Tenant LLC

 

Corporate Subsidiaries

 

Subsidiaries that are Maryland corporations (the “Corporate Subsidiaries”)

 

94.SNH 30 Newcrossing Inc.
95.SNH AL AIMO, Inc.
96.SNH AL AIMO II, Inc.
97.SNH AL AIMO Tenant, Inc.
98.SNH AL AIMO Tenant II, Inc.
99.SNH AL Crimson Tenant Inc.
100.SNH AL TRS, Inc.
101.SNH AL Wilmington Tenant Inc.
102.SNH Blaine Inc.
103.SNH IL Joplin Inc.
104.SNH SE Tenant TRS, Inc.
105.SNH SE Tenant 2 TRS, Inc.
106.SNH TRS Inc.
107.SNH Yonkers Tenant Inc.
108.SNH Ward Ave. Properties I Inc.

 

 

 

Exhibit 5.3

 

[TAFT STETTINIUS & HOLLISTER LLP LETTERHEAD]

 

June 1, 2020

 

Diversified Healthcare Trust

Two Newton Place

255 Washington Street, Suite 300

Newton, Massachusetts 02458

 

Ladies and Gentlemen:

 

We have acted as special Indiana counsel to CSL GROUP, INC., an Indiana corporation (“CSL”), and O.F.C. Corporation, an Indiana corporation (“OFC” and together with CSL, the “Opinion Parties” and each an “Opinion Party”), and are rendering this opinion in connection with the prospectus, dated May 28, 2020 (the “Base Prospectus”), as supplemented by the prospectus supplement, dated May 28, 2020 (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”), relating to the registration statement on Form S-3 (the “Registration Statement”) filed by Diversified Healthcare Trust, a real estate investment trust organized under the laws of Maryland (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on June 22, 2018, as amended by Post-Effective Amendment No. 1 filed with the Commission on May 28, 2020, and the offer and sale of: (i) $1,000,000,000 of the Company’s 9.750% Senior Notes due 2025 (the “Notes”) and (ii) guarantees of the Notes (the “Guarantees”) by certain subsidiaries of the Company, including the Opinion Parties (collectively, the “Guarantors”), in each case pursuant to the Indenture, dated as of February 18, 2016 (the “Base Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, to be dated as of June 2, 2020 (the “Supplemental Indenture”), among the Company, the Guarantors and the Trustee (the Base Indenture, as supplemented by the Supplemental Indenture, the “Indenture”).

 

In connection with this opinion, we have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. We have assumed that all signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform to the originals.

 

We have relied as to certain matters on information furnished by public officials, officers of the Company and the Guarantors, and other sources believed by us to be responsible.

 

Based upon and subject to the foregoing and subject also to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that: (i) each Opinion Party is a corporation incorporated and validly existing under the laws of the State of Indiana, (ii) each Opinion Party possesses the corporate power and authority to execute and deliver the Supplemental Indenture, to perform its obligations thereunder, including the Guarantees pursuant to the terms thereof, (iii) the execution and delivery of the Supplemental Indenture by each Opinion Party, and the performance by such Opinion Party of its obligations under the Indenture (including the Guarantees pursuant to the terms thereof), have been duly authorized by all requisite corporate action on the part of such Opinion Party, and (iv) upon execution and delivery of the Supplemental Indenture by each Opinion Party, each Opinion Party shall have duly executed and delivered