EXHIBIT 4.3
HEALTH AND RETIREMENT PROPERTIES TRUST
(a Maryland real estate investment trust)
$150,000,000 6 3/4% Senior Notes due December 18, 2002
REGISTRATION RIGHTS AGREEMENT
December 18, 1997
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Health and Retirement Properties Trust, a Maryland real estate
investment trust (the "Company"), proposes to issue and sell to Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx" or the
"Initial Purchaser"), upon the terms set forth in a purchase agreement dated
December 15, 1997 (the "Purchase Agreement"), $150,000,000 of the Company's 6
3/4% Senior Notes due December 18, 2002 (the "Notes"). The Notes will be issued
under an indenture and supplemental indenture to be dated as of December 18,
1997 (together, the "Indenture") between the Company and State Street Bank and
Trust Company, as trustee (the "Trustee"). Execution of this Agreement is a
condition to Closing under the Purchase Agreement.
As an inducement to you to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Company agrees
with you, (i) for your benefit and (ii) for the benefit of the holders of the
Notes from time to time (each of the foregoing, a "Holder" and together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the same meaning given to that term in
Rule 405 of the Act or any successor rule thereunder.
"Closing Time" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means, in respect of the Notes, a like
principal amount of debt securities of the Company identical in all material
respects to, and entitled to substantially the same benefits of the Notes.
"Exchange Offer Registration Period" means the 120-day period
following the issuance of the Exchange Notes, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchaser) which is a broker-dealer electing to exchange Notes acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Notes.
"Final Offering Memorandum" has the meaning set forth in the
Purchase Agreement.
"Holder" means the Initial Purchaser, for so long as the
Initial Purchaser shall hold Registrable Notes, and each of its successors,
assigns and direct and indirect transferees who become holders of Registrable
Notes.
2
"Indenture" has the meaning set forth in the preamble hereto.
"Liquidated Damages" has the meaning set forth in Section 8(a)
hereof.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" has the meaning set forth in the preamble hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes or the Exchange Notes, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registrable Notes" shall meant the Notes; provided, however,
that Notes shall cease to be Registrable Notes when (i) a Registration Statement
with respect to such Notes shall have been declared effective under the Act and
such Notes shall have been disposed of pursuant to such Registration Statement,
(ii) such Notes shall have been sold pursuant to Rule 144(k) (or any similar
rule then in effect, but not Rule 144A) under the Act, (iii) such Notes shall
have ceased to be outstanding, (iv) the Notes shall have been exchanged for
Exchange Notes which may be transferred without restriction under the Act or (v)
the Company has completed the Registered Exchange Offer and the holder of such
Notes did not exchange such Notes for a like principal amount of Exchange Notes.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, with respect to the Notes, a like
principal amount of Exchange Notes, in exchange for the Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Notes or the Exchange Notes pursuant to the provisions of this Agreement, and
amendments and
3
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant
to Section 3 hereof.
"Shelf Registration Event" has the meaning set forth in
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Registrable Notes on an appropriate form under Rule
415 under the Act, or any similar rule that may be adopted by the Commission,
and amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Special Counsel" means Xxxxx & Wood LLP or such other counsel
as shall be specified by the Majority Holders of securities included in the
relevant Registration Statement, the fees and expenses of which will be paid by
the Company pursuant to Section 5 hereof.
"Trustee" has the meaning set forth in the preamble hereto.
"Underwriter" means any underwriter of Registrable Notes in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Notes by
Exchanging Dealers. Unless prohibited by law or Commission policy: (a) The
Company shall prepare and, not later than 105 days following the Closing Time,
shall file with the Commission the Exchange Offer Registration Statement. The
Company shall use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days of the
Closing Time.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall use its best efforts to cause the Registered
Exchange Offer to be consummated within the sooner to occur of 45 days after the
effective date of the Exchange Offer Registration Date or 180 days after the
Closing
4
Time, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Registrable Notes for Exchange Notes (assuming that
such Holder is not an affiliate of the Company within the meaning of the Act,
acquires the Exchange Notes in the ordinary course of such Holder's business and
has no arrangements with any person to participate in the distribution (within
the meaning of the Act) of the Exchange Notes) to transfer such Exchange Notes
from and after their receipt without any limitations or restrictions under the
Act.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 business days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Registrable Notes validly
tendered and not withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Registrable Notes, Exchange Notes equal in
principal amount to the Registrable Notes of such Holder so accepted
for exchange therefor.
(e) The Initial Purchaser and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Notes received by such Exchanging Dealer pursuant to the
5
Registered Exchange Offer in exchange for Registrable Notes acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on
the cover of the Prospectus contained in the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer, and in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus forming
a part of the Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery of the
Prospectus forming a part thereof by Exchanging Dealers in connection
with sales of Exchange Securities received pursuant to the Registered
Exchange Offer, as contemplated by Section 4(h) below.
(f) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Notes constituting any portion of its initial unsold allotment,
at the request of the Initial Purchaser, the Company shall issue and deliver to
the Initial Purchaser, in exchange for such Notes, a like principal amount of
Exchange Notes (provided that such Exchange Notes shall include legends with
respect to restrictions on transfer and shall be deemed Registrable Notes) and
the Company shall, starting on the date of effectiveness of the Exchange Offer
Registration Statement and ending on the close of business on the 120th day
following such date, make available as many copies of the Exchange Offer
Registration Statement prospectus, as amended or supplemented, as reasonably
requested by the Initial Purchaser. The Company shall seek to cause the CUSIP
Service Bureau to issue the same CUSIP number(s) for such securities as for the
Exchange Notes issued pursuant to the Registered Exchange Offer. The Initial
Purchaser agrees to promptly notify the Company in writing following the resale
of its initial allotment of Notes.
3. Shelf Registration. If, (i) because of any change in law or
currently prevailing interpretations thereof by the Commission's staff, the
Company determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) for any other reason the Registered
6
Exchange Offer is not consummated within the sooner to occur of 45 days after
the effective date of the Exchange Offer Registration Statement or 180 days
after the Closing Time, or (iii) in the case of any Holder that participates in
the Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Notes on the date of the exchange (other than due solely to the status
of such Holder as an affiliate of the Company within the meaning of the Act or
as a broker-dealer) (it being understood that, for purposes of this Section 3,
(x) the requirement that the Initial Purchaser deliver a Prospectus containing
the information required by Items 507 and/or 508 of Regulation S-K under the Act
in connection with sales of Exchange Notes acquired in exchange for such Notes
shall result in such Exchange Notes being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of Exchange Notes acquired in the Registered Exchange Offer in exchange
for Notes acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Notes being not "freely tradeable")
(the events described in clauses (i), (ii) and (iii) of this paragraph are each
referred to herein as a "Shelf Registration Event"), the following provisions
shall apply:
(a) The Company shall promptly deliver to the Holders written
notice of a Shelf Registration Event and, as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to this Section
3), file with the Commission and thereafter use its reasonable best efforts to
cause to be declared effective under the Act, a Shelf Registration Statement
relating to the offer and sale of the Registrable Notes by the Holders from time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement; provided, however, that with
respect to Exchange Notes received by the Initial Purchaser in exchange for
Notes constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Regis tration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years after the effective date of the Shelf Registration Statement (or, the
shorter period
7
provided under Rule 144(k)) or such shorter period that will terminate when all
the Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period").
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, prior
to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and any Exchange Offer Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and the Company shall, if reasonably
requested, promptly incorporate in such Registration Statement, such
information and comments as the Initial Purchaser reasonably agrees
with the Company and its counsel should be included therein provided
that the Company shall not be required to take any action under this
Section 4(a) that is not in the reasonable opinion of counsel for the
Company in compliance with applicable law.
(b) The Company shall ensure that subject to Section 4(k), (i)
any Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto complies
in all material respects with the Act, (ii) any Registration Statement
and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such
Prospectus, does not, during the period when delivery thereof is
required, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchaser and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby and, if requested by the Initial Purchaser or any such
Holder, confirm such advice in writing:
(i) when a Registration Statement and any
amendment thereto has been filed with the Commission and when
a Registration Statement or any post-effective amendment
thereto has become effective; and
8
(ii) of any request by the Commission for
amendments or supplements to a Registration Statement or the
Prospectus included therein or for additional information.
(2) The Company shall advise the Initial Purchaser and, in the
case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange
Offer Registration Statement, any Exchanging Dealer which has
provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by you or
any such Holder or Exchanging Dealer, confirm such advice in
writing:
(i) of the Company becoming aware of the issuance
by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of a Prospectus.
(d) Subject to Section 4(k), the Company shall use its
reasonable best efforts to prevent the issuance or obtain the
withdrawal of any order suspending the effectiveness or use of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
(f) Subject to Section 4(k), the Company shall, during the
Shelf Registration Period, as promptly as is reasonably practicable
deliver to each Holder of securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf
9
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and subject to Section 4(k), the Company
consents to the use of the Prospectus or any amendment or supplement
thereto as to which no notice has been given pursuant to paragraph
4(c)(2) by each of the selling Holders of securities in connection with
the offering and sale of the securities covered by the Prospectus or
any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits (including those incorporated by
reference).
(h) Subject to Section 4(k), the Company shall, during the
Exchange Offer Registration Period, promptly deliver to each Exchanging
Dealer, without charge, as many copies of the Prospectus included in
such Exchange Offer Registration Statement and any amendment or
supplement thereto as such Exchanging Dealer may reasonably request for
delivery by such Exchanging Dealer in connection with a sale of
Exchange Notes received by it pursuant to the Registered Exchange
Offer; and subject to Section 4(k), the Company consents to the use of
the Prospectus or any amendment or supplement thereto as to which no
notice has been given pursuant to paragraph 4(c)(2) by any such
Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or the
effectiveness of a Registration Statement, the Company shall, if
required by applicable law, register or qualify or cooperate with the
Holders of securities included therein and their respective counsel in
connection with the registration or qualification of such securities
for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the
offer and sale in such United States jurisdictions of the securities
covered by such Registration Statement; provided, however, that the
Company will not be required to (i) qualify generally to do business or
as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but
for this Section 4(i), (ii) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof so
subject or (iii) subject
10
itself to taxation in any jurisdiction where it is not otherwise
subject.
(j) Unless the applicable securities shall be in book-entry
only form, the Company shall cooperate with the Holders of Notes to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
Registrable Notes pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraphs (c)(1)(ii) or (c)(2) above, the Company agrees to notify the
Initial Purchaser, and in the case of a Shelf Registration Statement,
the Holders of securities covered thereby, to suspend use of the
Prospectus and the Company shall prepare, using its reasonable best
efforts to do so as soon as possible, a post-effective amendment to any
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and the Initial Purchaser, and in the case of a Shelf
Registration Statement, the Holders of securities covered thereby,
shall suspend use of such Prospectus until the Company has amended or
supplemented such Prospectus so that such Prospectus does not contain
any such untrue statement or omission.
(l) The Company shall use its reasonable best efforts to cause
The Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Registrable Notes, any
designation indicating that such Registrable Notes are "restricted
securities," which efforts shall include delivery to DTC of a letter
executed by the Company substantially in the form of Annex E hereto and
(ii) any other stop or restriction on DTC's system with respect to such
Registrable Notes. In the event the Company is unable to cause DTC to
take the actions described in the immediately preceding sentence, the
Company shall take such actions as the Initial Purchaser may reasonably
request to provide, as soon as practicable, a CUSIP number for the
Registrable Notes registered under such Registration Statement and to
cause such CUSIP numbers to be assigned to such Registrable Notes (or
to the maximum
11
aggregate principal amount of such Registrable Notes to which such
number(s) may be assigned). Upon compliance with the foregoing
requirements of this Section 4(l), the Company shall provide the
Trustee with printed certificates for the Registrable Notes, in a form
eligible for deposit with DTC.
(m) The Company shall use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Act.
(n) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939 (the "Trust Indenture Act") in a
timely manner.
(o) The Company may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding such Holder and the distribution of
such securities by such Holder as the Company may from time to time
reasonably require for inclusion in such Registration Statement and
securities of a Holder which does not provide information necessary for
inclusion in such Registration Statement may be omitted from any Shelf
Registration Statement.
(p) The Company shall, if reasonably requested, and in no
event more than three times, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and
Majority Holders reasonably agree with the Company and its counsel
should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment provided that the Company shall not be
required to take any action under this Section 4(p) that is not in the
reasonable opinion of counsel for the Company in compliance with
applicable law.
(q) In the case of any Shelf Registration Statement, the
Company shall enter into such customary agreements (including
underwriting agreements) and take all other appropriate and reasonably
required actions in connection therewith in order to expedite or
facilitate the registration or the disposition of the Registrable Notes
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and
procedures no less favorable than those set
12
forth in Section 6 (or such other provisions and procedures acceptable
to the Company, the Holders of a majority in aggregate principal amount
of Registrable Notes and the Managing Underwriters, if any) with
respect to all parties to be indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, subject to their
acceptance of the provisions of this Section 4(r), any underwriter
participating in any distribution pursuant to such Registration
Statement, and any Special Counsel, accountant or other agent retained
by the Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries as shall reasonably be required in
connection with the discharge of their due diligence obligations; (ii)
cause the Company's officers, directors and employees and any relevant
trustee to supply all relevant information reasonably requested by the
Holders or any such underwriter, Special Counsel, accountant or agent
in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that, in the
case of clause (i) and (ii) above, any information that is designated
in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the
Holders and any such under writer, Special Counsel, accountant or
agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to
the public generally or through a third party without an accompanying
obligation of confidentiality; and provided further, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Holders and the other parties entitled thereto by the
Special Counsel and other parties; (iii) make such representations and
warranties to the Holders of securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in secondary offerings and covering
such matters as are customarily covered in representations and
warranties requested in secondary offerings; (iv) obtain opinions of
counsel to the Company and updates thereof addressed to each selling
Holder and the underwriters, if any, covering such matters and with
such exceptions as are customarily covered or taken in opinions
requested in secondary offerings; (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary
13
of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling
Holder of securities registered thereunder if such Holders shall have
provided to such accountants customary engagement letters relating to
the receipt of "cold comfort" letters by selling Holders and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
secondary offerings; and (vi) deliver such documents and certificates
as may be reasonably requested by the Majority Holders and the Managing
Underwriters, if any, or Special Counsel including those to evidence
compliance with Section 4(k) and with conditions customarily contained
in the underwriting agreement entered into by the Company. The
foregoing actions set forth in clauses (iii) and (v) of this Section
4(r) shall be performed at the effectiveness of such Registration
Statement and those set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(r) shall be performed at each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) In the case of any Exchange Offer Registration Statement,
if requested by the Initial Purchaser, the Company shall (i) make
reasonably available for inspection by the Initial Purchaser, subject
to its acceptance of the provisions of this Section 4(s), and any
Special Counsel, accountant or other agent retained by the Initial
Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
as shall reasonably be required in connection with the discharge of
their due diligence obligations; (ii) cause the Company's officers,
directors and employees and any relevant trustee to supply all relevant
information reasonably requested by the Initial Purchaser or any such
Special Counsel, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Initial Purchaser and any
such Special Counsel, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchaser and other parties entitled thereto by the Special Counsel and
other parties; (iii) make such
14
representations and warranties to the Initial Purchaser, in form,
substance and scope as are customarily made by issuers to underwriters
in secondary offerings and covering such matters as are customarily
covered in representations and warranties requested in secondary
offerings; and (iv) deliver such documents and certificates as may be
reasonably requested by the Initial Purchaser or its counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements. The foregoing actions
set forth in clauses (iii) and (iv) of this Section 4(s) shall be
performed, if requested by the Initial Purchaser, at the closing of the
Registered Exchange Offer and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of the Special
Counsel designated in connection therewith, and, in the case of any Exchange
Offer Registration Statement, will reimburse the Initial Purchaser for the
reasonable fees and disbursements of the Special Counsel acting in connection
therewith; provided, however, that each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Notes pursuant to a Shelf Registration Statement.
6. Indemnification.
(a) Indemnification of Initial Purchaser, Holders and Others. In
connection with any Registration Statement, the Company agrees to indemnify and
hold harmless the Initial Purchaser, each Holder, each underwriter who
participates in an offering of the Registrable Notes, each Exchanging Dealer and
each person, if any, who controls any of such parties within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, including all
documents incorporated therein by reference, or any preliminary
Prospectus or any Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
15
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii)against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Holder,
such Exchanging Dealer, or any underwriter (except to the extent
otherwise expressly provided in Section 6(c) hereof)), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such
Holder, underwriter or Exchanging Dealer expressly for use in any
Registration Statement or any amendment thereof, any preliminary
Prospectus or any Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto);
and provided, further, that the foregoing indemnity agreement with respect to
any preliminary Prospectus shall not inure to the benefit of such Holder,
underwriter or Exchanging Dealer, or the benefit of any person controlling any
of such parties, if a copy of the Prospectus (excluding documents incorporated
or deemed to be incorporated by reference therein) was not sent or given by or
on behalf of any of such parties to such person asserting any such losses,
claims, damages or liabilities at or prior to the written confirmation of the
sale of such Notes to such person, if required by law so to have been delivered,
and if the Prospectus (as then amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or expense.
(b) Indemnification of Company, Trustees and Officers. The Initial
Purchaser and each Holder, underwriter or Exchanging
16
Dealer severally agrees to indemnify and hold harmless the Company, its
trustees, its officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any Registration Statement or any amendment thereof, any
preliminary Prospectus or any Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Holder, underwriter or Exchanging Dealer expressly for use in such Registration
Statement, preliminary Prospectus or Prospectus; provided, however, that in the
case of a Shelf Registration Statement, no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Notes pursuant to such Shelf Registration
Statement.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by such parties, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such
17
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Initial Purchaser, each Holder, each underwriter and each Exchanging Dealer
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company on the one hand and the Initial
Purchaser, each Holder, each underwriter and each Exchanging Dealer on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Initial Purchaser, each Holder, each underwriter and each Exchanging
Dealer and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7.
18
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Notes purchased by it were resold to the public
exceeds the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of such untrue 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.
For purposes of this Section 7, each person, if any, who controls the
Initial Purchaser, each Holder, each underwriter or each Exchanging Dealer
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as any of such parties, and each
trustee of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company.
8. Liquidated Damages Under Certain Circumstances. (a)
Liquidated damages ("Liquidated Damages") shall become payable in respect of
Registrable Notes as follows if any of the following events occur (each such
event in clauses (i) through (vi) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 105th day following the
Closing Time;
(ii) if the Exchange Offer Registration Statement is not
declared effective on or prior to the 150th day following the Closing
Time;
(iii) if the Registered Exchange Offer is not consummated
within the sooner to occur of 45 days after the effective date of the
Exchange Offer Registration Statement or 180 days after the Closing
Time;
19
(iv) if the Shelf Registration Statement is not filed with
the Commission on or prior to the 60th day after such filing obligation
arises;
(v) if the Shelf Registration Statement is not declared
effective on or prior to the 45th day after it is filed; or
(vi) if after the Exchange Offer Registration Statement or
Shelf Registration is declared effective, (A) such Exchange Offer
Registration Statement or Shelf Registration Statement ceases to be
effective prior to the end of the Exchange Offer Registration Period or
Shelf Registration Period (except as permitted in paragraph (b) of this
Section 8); (B) such Exchange Offer Registration Statement or Shelf
Registration Statement or the related Prospectus ceases to be useable
in connection with resales of Registrable Notes covered by such
Exchange Offer Registration Statement or Shelf Registration Statement
prior to the end of the Exchange Offer Registration Period or Shelf
Registration Period (except as permitted in paragraph (b) of this
Section 8) because (1) the Company determines that any event occurs as
a result of which the related Prospectus forming part of such Exchange
Offer Registration Statement or Shelf Registration Statement would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, (2) the
Company determines that it shall be necessary to amend such Exchange
Offer Registration Statement or Shelf Registration Statement, or
supplement the related Prospectus, to comply with the Act or the
Exchange Act or the rules thereunder, or (3) the Company determines
that it is advisable to suspend use of the Prospectus for a discrete
period of time due to pending material corporate developments or
similar material events that have not yet been publicly disclosed and
as to which the Company believes public disclosure will be prejudicial
to the Company.
Liquidated Damages shall accrue on the Registrable Notes over
and above the interest rate set forth in the title to the Registrable Notes
following the occurrence of a Registration Default set forth in clauses (i)
through (vi) above from and including the next day following each such
Registration Default, in each case at a rate equal to 0.50% per annum; provided,
further, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (i) or (iv)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration Statement (in the case of clause (ii) or (v) above), (3)
upon the
20
exchange of Notes pursuant to the Exchange Offer Registration Statement (in the
case of clause (iii) above), or (4) at such time as the Exchange Offer
Registration Statement or a Shelf Registration Statement which had ceased to
remain effective or usable again becomes effective and usable (in the case of
clause (vi) above), Liquidated Damages on the unpaid principal amount of the
Notes, as a result of such Registration Default, shall cease to accrue.
(b) A Registration Default referred to in Section 8(a)(vi)
shall be deemed not to have occurred and be continuing in relation to the
Exchange Offer Registration Statement or Shelf Registration Statement or the
related Prospectus if (i) such Registration Default has occurred solely as a
result of (x) the filing of a post-effective amendment to such Exchange Offer
Registration Statement or Shelf Registration Statement to incorporate annual
audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related Prospectus or (y) in the case of the
Exchange Offer Registration Statement, to the extent offers or sales thereunder
are not permitted to be made in accordance with Instruction 1 to Form 8-K if the
Company has timely reported a business acquisition pursuant to Item 2 of Form
8-K, but financial statements required to be filed pursuant to Item 7 of Form
8-K with respect to such business acquisition have not been filed by the Company
and are not at the time required to be filed in accordance with such Item and
such Instruction, or (z) the occurrence of other material events or developments
with respect to the Company that would need to be described in such Exchange
Offer Registration Statement or Shelf Registration Statement or the related
Prospectus and (ii) in the case of clause (z), the Company is proceeding
promptly and in good faith to amend or supplement such Exchange Offer
Registration Statement or Shelf Registration Statement and related Prospectus to
describe such events.
(c) Any amounts of Liquidated Damages due pursuant to the
foregoing paragraphs will be payable in cash on June 18 and December 18 of each
year to the holders of record on the preceding May 3 and November 3,
respectively.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date here of, enter
into, any agreement with respect to the Notes that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
21
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of Registrable Notes; provided, however, that, with respect to
any matter that affects the rights of the Initial Purchaser hereunder, the
Company shall obtain the written consent of the Initial Purchaser.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Registrable Notes are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Holders of a
majority of the Registrable Notes, determined on the basis of Registrable Notes
being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Trustee under the Indenture, with a copy in
like manner to Xxxxxxx Xxxxx;
(2) if to the Initial Purchaser, initially at the
address set forth in the Purchase Agreement; and
(3) if to the Company, initially at the address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchaser or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Notes. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of
22
Registrable Notes and any such Holder may enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Registrable
Notes is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or their respective Affiliates (other than subsequent Holders of
Registrable Notes if such subsequent Holders are deemed to be Affiliates solely
by reason of their holdings of such Notes or Exchange Notes) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED OCTOBER 9,
1986, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"),
IS DULY ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND AND PROVIDES THAT THE NAME "HEALTH AND RETIREMENT
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
23
Please confirm that the foregoing correctly sets forth the
agreement among the Company and you.
Very truly yours,
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
Accepted, December 18, 1997
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Tjarda van X. Xxxxxxxx
Name: Tjarda van X. Xxxxxxxx
Title: Director
24
ANNEX A
Annex A
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed for a period of at least 120 days after the
consummation of the Exchange Offer to make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Annex B
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities. The Company has
agreed for a period of at least 120 days after the consummation of the Exchange
Offer to make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
, 199 , all dealers effecting transactions in the Exchange Notes may
be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Act and any profit of any such
resale of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of at least 120 days after the consummation of
the Exchange Offer, the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer
(including the expenses of any Special Counsel for the holders of the Notes)
other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Notes participating in the Exchange Offer
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
2
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:__________________________________________
Address: ______________________________________
______________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer that will
receive Exchange Notes for its own account in exchange for Notes, it represents
that the Notes to be exchanged for Exchange Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Health and Retirement Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: $150,000,000 6 3/4% Senior Notes due December 18, 2002
of Health and Retirement Properties Trust
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, with regard to all of the securities referenced above.
Accordingly, there is no longer any restriction as to whom such securities may
be sold and any restrictions on the CUSIP designations are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to these issues.
As always, please do not hesitate to call if we can be of
further assistance.
HEALTH AND RETIREMENT PROPERTIES TRUST
by:
Authorized Officer
