SC 13D/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

SCHEDULE 13D/A
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO §240.13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO § 240.13D-2(a)

Under the Securities Exchange Act of 1934
(Amendment No. 3)*

ALERISLIFE INC.

(Name of Issuer)

Common Stock, $.01 par value

(Title of Class of Securities)

33832D205

(CUSIP Number)

Adam D. Portnoy

ABP Acquisition LLC

Two Newton Place, 255 Washington Street, Suite 300

Newton, Massachusetts 02458-1634

(617) 928-1300

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

February 2, 2023

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 33832D205						13D/A
	1.	Name of Reporting Persons ABP Acquisition LLC
	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			¨
		(b)			¨
	3.	SEC Use Only
	4.	Source of Funds (See Instructions) WC
	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e)     ¨
	6.	Citizenship or Place of Organization Maryland
Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0
			8.	Shared Voting Power 1,799,999
			9.	Sole Dispositive Power 0
			10.	Shared Dispositive Power 1,799,999
	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,799,999
	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
	13.	Percent of Class Represented by Amount in Row 11 5.4%
	14.	Type of Reporting Person (See Instructions)OO

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	1.	Name of Reporting Persons ABP Trust
	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			¨
		(b)			¨
	3.	SEC Use Only
	4.	Source of Funds (See Instructions) OO
	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e)     ¨
	6.	Citizenship or Place of Organization Maryland
Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0
			8.	Shared Voting Power 1,972,783
			9.	Sole Dispositive Power 0
			10.	Shared Dispositive Power 1,972,783
	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,972,783
	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o
	13.	Percent of Class Represented by Amount in Row 11 5.9%
	14.	Type of Reporting Person (See Instructions)OO

3

	1.	Name of Reporting Persons Adam D. Portnoy
	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			¨
		(b)			¨
	3.	SEC Use Only
	4.	Source of Funds (See Instructions) N/A
	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e)     ¨
	6.	Citizenship or Place of Organization United States
Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 57,332
			8.	Shared Voting Power 1,972,783
			9.	Sole Dispositive Power 57,332
			10.	Shared Dispositive Power 1,972,783
	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 2,030,115
	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
	13.	Percent of Class Represented by Amount in Row 11 6.1%
	14.	Type of Reporting Person (See Instructions)IN

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This Amendment No. 3 (this “Schedule 13D/A”) to the original Schedule 13D filed with the U.S. Securities and Exchange Commission (the “SEC”) on November 14, 2016 (the “Original Schedule 13D”), as amended by Amendment No. 1 to the Original Schedule 13D filed with the SEC on April 8, 2019 and Amendment No. 2 filed with the SEC on January 2, 2020 (as amended, the “Schedule 13D”), is being filed by ABP Acquisition LLC, a Maryland limited liability company (“ABP LLC”), ABP Trust, a Maryland statutory trust (“ABP Trust”), and Adam D. Portnoy, a United States citizen (each of ABP LLC, ABP Trust and Adam D. Portnoy, a “Reporting Person” and, collectively, the “Reporting Persons”), to report, among other things, that AlerisLife Inc. (the “Issuer”), ABP LLC and ABP Acquisition 2 LLC, a Maryland limited liability company and wholly owned subsidiary of ABP LLC (“Purchaser”) have entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, (i) Purchaser will commence a tender offer to purchase all of the issued and outstanding shares of common stock, par value $.01 per share (the “Common Shares”), of the Issuer, subject to the terms and conditions set forth in the Merger Agreement, and (ii) following consummation of the tender offer and subject to the terms and conditions set forth in the Merger Agreement, Purchaser will merge with and into the Issuer pursuant to Section 3-106.1 of the Maryland General Corporation Law (the “MGCL”) without a vote or meeting of the stockholders of the Issuer, with the Issuer being the Surviving Corporation (as defined in the Merger Agreement) and becoming a wholly owned subsidiary of ABP LLC (the “Merger”). Capitalized terms used but not defined in this Schedule 13D/A shall have the same meanings ascribed to them in the Schedule 13D.

Item 1. Security and Issuer.

The information contained in “Item 1. Security and Issuer” contained in the Schedule 13D is not being amended by this Schedule 13D/A.

Item 2. Identity and Background.

The information contained in “Item 2. Identity and Background” contained in the Schedule 13D is not being amended by this Schedule 13D/A.

Item 3. Source and Amount of Funds or Other Consideration.

“Item 3. Source and Amount of Funds or Other Consideration” of the Schedule 13D is hereby amended to add the following:

The Reporting Persons intend to fund the transactions contemplated by the Merger Agreement with available cash on hand.

Item 4. Purpose of Transaction.

“Item 4. Purpose of Transaction” of the Schedule 13D is hereby amended to add the following:

On February 2, 2023, the Issuer, ABP LLC and Purchaser entered into the Merger Agreement. Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, on or before the tenth business day after the date of the Merger Agreement, Purchaser will commence a tender offer (the “Offer”) to purchase all of the issued and outstanding Common Shares (other than Common Shares held by ABP LLC or any person that owns, directly or indirectly, all of the outstanding equity interests of Purchaser) at a price of $1.31 per Common Share, net to the seller in cash, without interest (the “Offer Price”).

Purchaser’s obligation to accept for payment the Common Shares tendered in the Offer is conditioned upon, among other things, (i) there being validly tendered and not validly withdrawn Common Shares that, together with the Common Shares held by ABP LLC and any persons that own, directly or indirectly, all of the outstanding equity interests of Purchaser, represent one more Common Share than 50% of all then-outstanding Common Shares at the time of the expiration of the Offer, and (ii) receipt of consent from the Issuer's existing lender that the proposed change of control contemplated by the Merger Agreement will not constitute an event of default under the Issuer's existing financing arrangements with such lender. The transaction is not anticipated to be subject to any antitrust or competition regulatory approvals.

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Following the consummation of the Offer and subject to the terms and conditions of the Merger Agreement, Purchaser will consummate the Merger.

At the effective time of the Merger, (i) each Common Share (other than Common Shares held by ABP LLC, Purchaser or any person that owns, directly or indirectly, all of the outstanding equity interests of Purchaser) will be converted into the right to receive an amount in cash equal to the Offer Price, without any interest thereon and subject to any withholding of taxes; (ii) the directors of the Surviving Corporation will be the individuals designated by Parent immediately prior to Closing (as defined in the Merger Agreement), and the officers of the Surviving Corporation will be the individuals who are serving as the officers of the Issuer as of immediately prior to the effective time of the Merger; and (iii) the charter of the Issuer will be amended and restated in its entirety as set forth in an exhibit to the Merger Agreement.

Upon completion of the Merger, the Common Shares currently listed on the Nasdaq Stock Market (the “Nasdaq”) will cease to be listed on the Nasdaq and will subsequently be deregistered under the Securities Exchange Act of 1934.

The foregoing description of the Merger Agreement is qualified in its entirety by reference, and is incorporated herein by reference, to the full text of the Merger Agreement, which is attached as Exhibit 2.1 to the Current Report on Form 8-K filed by the Issuer with the SEC on February 3, 2023.

The purpose of the Offer and the Merger is for ABP LLC to acquire the entire equity interest in the Issuer. The Offer, as the first step in the acquisition of the Issuer, is intended to facilitate the acquisition of all of the Common Shares. The purpose of the Merger is to acquire all Common Shares not purchased pursuant to the Offer or otherwise held by ABP LLC, Purchaser or any person that owns, directly or indirectly, all of the outstanding equity interests of Purchaser and to cause the Issuer to become a wholly owned subsidiary of ABP LLC.

The tender offer referred to in this Schedule 13D has not yet commenced. The description contained in this Schedule 13D is neither an offer to purchase nor a solicitation of an offer to sell any securities, nor is it a substitute for the tender offer materials that Purchaser will file with the SEC. The solicitation and offer to buy Common Shares will only be made pursuant to an offer to purchase and related tender offer materials. At the time the tender offer is commenced, Purchaser will file a tender offer statement on Schedule TO and thereafter the Issuer will file a solicitation/recommendation statement on Schedule 14D-9 with the SEC with respect to the Offer. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WILL CONTAIN IMPORTANT INFORMATION. SHAREHOLDERS OF THE ISSUER ARE URGED TO READ THESE DOCUMENTS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR COMMON SHARES. The offer to purchase, the related letter of transmittal and the solicitation/recommendation statement will be made available free of charge at the SEC’s website at www.sec.gov. Additional copies may be obtained for free by contacting Purchaser, the Reporting Persons or the Issuer, as applicable. Copies of the documents filed with the SEC by the Issuer will be available free of charge on the Issuer’s internet website at https:/alerislife.com/ or by contacting the Issuer’s investor relations team at (617) 796-8245.

In connection with execution of the Merger Agreement, Diversified Healthcare Trust, a Maryland real estate investment trust (“DHC”), in its capacity as a stockholder of the Issuer, has entered into a Consent and Amendment Agreement, dated as of February 2, 2023 (the “Consent Agreement”), by and among DHC, DHC Holdings LLC, a Maryland limited liability company (together with DHC, the “DHC Parties”), Purchaser, each of the Reporting Persons and, for purposes of Article V thereto only, the Issuer, pursuant to which, among other things, (i) DHC has consented to Purchaser’s proposed acquisition of Common Shares pursuant to the Offer and the Merger, (ii) the DHC Parties have agreed to tender all of the Common Shares owned by the DHC Parties (the “DHC ALR Shares”), representing approximately thirty-one and nine tenths of one percent (31.9%) of the outstanding Common Shares of the Issuer, into the Offer and (iii) DHC has the right, but not the obligation, to purchase, in a single private transaction, on or before December 31, 2023, a number of shares of the Surviving Corporation constituting a percentage of the then issued and outstanding shares of the Surviving Corporation up to the percentage that the DHC ALR Shares constituted of the fully-diluted shares of the Issuer as of immediately prior to the Offer Acceptance Time (as defined in the Merger Agreement) based on the Offer Price.

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The foregoing description of the Consent Agreement is qualified in its entirety by reference to the full text of the Consent Agreement, which is attached as Exhibit 99.15 and is incorporated herein by reference.

In addition to the Consent Agreement, the offer to purchase, the related letter of transmittal and certain other tender offer documents to be filed by Purchaser, as well as the solicitation/recommendation statement to be filed by the Issuer, the Issuer will also file annual, quarterly, and current reports with the SEC as required prior to the Closing (as defined in the Merger Agreement) and for a limited period thereafter as may be required. Issuer’s filings with the SEC are available to the public from commercial document-retrieval services and at the website maintained by the SEC at http://www.sec.gov.

Item 5. Interest in Securities of the Issuer.

“Item 5. Interest in Securities of the Issuer” of the Schedule 13D is hereby amended to add the following:

The following information with respect to the ownership of the Common Shares by the Reporting Persons filing this Schedule 13D is provided as of February 1, 2023:

The information contained in rows 7, 8, 9, 10, 11 and 13 on each of the cover pages of this Schedule 13D and the information set forth or incorporated in Items 2 and 3 of this Schedule 13D is incorporated by reference in its entirety into this Item 5.

(a)-(b) The following disclosures are based on 33,466,133 Common Shares issued and outstanding as of February 1, 2023, such number of shares being based on information provided by the Issuer.

Pursuant to Rule 13d-3 under the Exchange Act, the Reporting Persons may be deemed to beneficially own the following:

Reporting Persons	Shares Held Directly		Sole Voting Power		Shared Voting Power		Sole Dispositive Power		Shared Dispositive Power		Beneficial Ownership		Percentage of Class
ABP LLC		—		—		1,799,999		—		1,799,999		1,799,999		5.4	%
ABP Trust		—		—		1,972,783		—		1,972,783		1,972,783		5.9	%
Adam D. Portnoy (1)		57,332		57,332		1,972,783		57,332		1,972,783		2,030,115		6.1	%

(1) Adam D. Portnoy is a managing trustee and chair of the board of trustees of DHC, which owns 10,691,658 Common Shares. Adam D. Portnoy is also an executive officer of The RMR Group LLC, a Maryland limited liability company (“RMR LLC”), the manager of DHC. However, Adam D. Portnoy and RMR LLC may not act to vote or sell the 10,691,658 Common Shares owned by DHC without authorization of the board of trustees of DHC, which is comprised of seven trustees. Adam D. Portnoy expressly disclaims any beneficial ownership of the Common Shares beneficially owned by DHC.

(c) Other than as described in Item 4 above, no transactions have been effected by the Reporting Persons in the Issuer’s securities in the past sixty days.

(d) Other than as described in Item 4 above, no other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities covered by this Schedule 13D.

(e) Not applicable.

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Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

“Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer” of the Schedule 13D is hereby amended to add the following:

The information set forth in Item 4 above is hereby incorporated by reference.

Item 7. Material to be Filed as Exhibits.

“Item 7. Material to be Filed as Exhibits” of the Schedule 13D is hereby amended to add the following:

Exhibit Number	Description
99.14	Agreement and Plan of Merger, dated as of February 2, 2023, by and among AlerisLife Inc., ABP Acquisition LLC and ABP Acquisition 2 LLC (Incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by AlerisLife Inc. on February 3, 2023).
99.15	Consent and Amendment Agreement, dated as of February 2, 2023, by and among Diversified Healthcare Trust, DHC Holdings LLC, ABP Trust, ABP Acquisition LLC, ABP Acquisition 2 LLC and Adam D. Portnoy.

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SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

February 3, 2023
(Date)
ABP Acquisition LLC
By:	/s/ Adam D. Portnoy
	Adam D. Portnoy, President
ABP Trust
By:	/s/ Adam D. Portnoy
	Adam D. Portnoy, President
/s/ Adam D. Portnoy
Adam D. Portnoy

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EX-99.15

Exhibit 99.15

Execution Version

CONSENT AND AMENDMENT AGREEMENT

THIS CONSENT AND AMENDMENT AGREEMENT, dated as of February 2, 2023 (as amended, supplemented or restated from time to time, this “Agreement”), by and among Diversified Healthcare Trust, a Maryland real estate investment trust (“DHC”), DHC Holdings LLC, a Maryland limited liability company, ABP Trust, a Maryland statutory trust, ABP Acquisition LLC, a Maryland limited liability company and a wholly owned subsidiary of ABP Trust (“Parent”), ABP Acquisition 2 LLC, a Maryland limited liability company and a wholly owned subsidiary of Parent (“Purchaser”), Adam D. Portnoy and, for purposes of ARTICLE V only, and otherwise acknowledged by, AlerisLife Inc., a Maryland corporation (“ALR”).

WITNESSETH

WHEREAS, the DHC Board has been advised by the Requesting Parties that the Requesting Parties have requested that the ALR Board, among other things, grant the Ownership Limit Exceptions to the Requesting Parties and the Collateral Persons, in order for Parent and Purchaser to enter into an Agreement and Plan of Merger with ALR (the “Merger Agreement”), with respect to the Proposed Acquisition;

WHEREAS, ALR manages senior living communities for DHC; DHC owns 2,515,633 ALR Common Shares and DHC Holdings LLC owns 8,176,025 ALR Common Shares (in aggregate, the “DHC ALR Shares”), representing approximately thirty-one and nine tenths of one percent (31.9%) of the issued and outstanding ALR Common Shares;

WHEREAS, ALR’s Charter requires that DHC consent to the grant by the ALR Board of the Ownership Limit Exceptions;

WHEREAS, under the DHC/ALR Agreements, the Proposed Acquisition would constitute a default or event of default if not otherwise consented to or waived by DHC or its applicable subsidiary;

WHEREAS, it is a condition to the consummation of the Proposed Acquisition that DHC consent to the grant by the ALR Board of the Ownership Limit Exceptions and waive any default or event of default under any DHC/ALR Agreement arising or resulting from the Proposed Acquisition or the granting of the Ownership Limit Exceptions; and

WHEREAS, the Requesting Parties have further requested that the DHC Parties agree to (1) tender all of the DHC ALR Shares into the tender offer to be commenced by Purchaser pursuant to the Merger Agreement at the Tender Offer Price and subject to the terms of this Agreement, and (2) amend the DHC/ALR Agreements to eliminate any change of control default or event of default provisions;

NOW, THEREFORE, in consideration of the aforesaid and the mutual promises hereinafter made and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Article I
DEFINITIONS

SECTION 1.1         Definitions. As used in this Agreement, the following terms shall have the following meanings:

“1934 Act” means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.

“Affiliate” of a Person means and includes another Person that directly, or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, such Person.

“Agreement” is defined in the preamble to this Agreement.

“ALR” is defined in the preamble to this Agreement.

“ALR Board” means the Board of Directors of ALR.

“ALR Common Shares” means shares of common stock, par value $.01 per share, of ALR.

“ALR’s Charter” means the Articles of Amendment and Restatement of ALR, as amended and supplemented.

“Beneficially Own” (or any correlative form thereof) has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the 1934 Act, except that a Person shall be deemed to have “Beneficial Ownership” of all the securities that such Person has a right to acquire, whether such right is exercisable immediately or only after the passage of time.

“Business Day” means a day, other than Saturday, Sunday or other day on which banks located in Boston, Massachusetts or Baltimore, Maryland are authorized or required by Law to close.

“Code” means the United States Internal Revenue Code of 1986, as amended.

“Collateral Person” means RMR, each Family Member of a Requesting Party and each other Person (other than the DHC Parties and the Requesting Parties, and, upon the death of Mr. Portnoy, his estate and spouse) who Constructively Owns (as defined in ALR’s Charter) ALR Common Shares on account of attribution under the Code from one or more of the Requesting Parties (or with respect to Mr. Portnoy, his estate or spouse), the DHC Parties or RMR.

“Constructively Own” (or any correlative form thereof) has the meaning set forth in DHC’s Charter.

“Control” (or any correlative form thereof) in respect of an Entity means (i) Beneficial Ownership of securities representing twenty percent (20%) or more of the voting power entitled to vote for the election of the board of directors, board of trustees, board of managers or other governing body of such Entity or, in the case of an Entity that is a partnership, limited partnership or limited liability company, of the general partner, managing member or manager of such Entity or (ii) if the Entity is a charitable Entity, having the sole or shared power to vote or direct the voting or to dispose or direct the disposition of securities owned by such Entity. For the avoidance of doubt, a partner of a general partnership shall be deemed to Control the partnership, a general partner of a limited partnership shall be deemed to Control the limited partnership and a managing member of a limited liability company shall be deemed to Control the limited liability company. A managing director or trustee of a board of directors or trustees shall not be deemed to control the applicable board or Entity unless a majority of the board is comprised of managing directors or trustees.

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“Controlled Affiliate” of a Person shall mean any Affiliate of such Person that directly, or indirectly through one or more intermediaries, is Controlled by, or is under common Control with, such Person.

“DHC” is defined in the preamble to this Agreement.

“DHC ALR Shares” is defined in the recitals of this Agreement.

“DHC Board” means the Board of Trustees of DHC.

“DHC Parties” means DHC and DHC Holdings LLC.

“DHC/ALR Agreements” means, together, the Management Agreement and the Guaranty.

“DHC’s Charter” means the Articles of Amendment and Restatement of DHC, as amended and supplemented.

“Entity” means any general partnership, limited partnership, corporation, limited liability company, joint venture, real estate investment trust, business trust or other trust, cooperative, unincorporated association or other form of organization, whether or not a legal entity.

“Family Member” means, as to any Requesting Party who is an individual, such Requesting Party’s spouse, child, stepchild, grandchild, son-in-law, or daughter-in-law, but excluding any of such Persons who is a Requesting Party.

“Guaranty” means that certain Amended and Restated Guaranty Agreement, dated as of June 9, 2021, by ALR for the benefit of certain subsidiaries of DHC.

“Governmental Entity” means (a) the United States of America, (b) any other sovereign nation, (c) any state, province, district, territory or other political subdivision of (a) or (b) of this definition, including any county, municipal or other local subdivision of the foregoing, or (d) any entity exercising executive, legislative, judicial, regulatory or administrative functions of government on behalf of (a), (b) or (c) of this definition.

“Law” means any law, statute, ordinance, rule, regulation, directive, code or order enacted, issued, promulgated, enforced or entered by any Governmental Entity.

“Management Agreement” means that certain Amended and Restated Master Management Agreement, dated as of June 9, 2021, among DHC and certain of its subsidiaries and ALR and certain of its subsidiaries.

“Merger Agreement” is defined in the recitals of this Agreement.

“Ownership Limit” has the meaning set forth in ALR’s Charter.

“Ownership Limit Exceptions” means the exceptions to the Ownership Limit granted by the ALR Board to the Requesting Parties in connection with its approval of the execution, delivery and performance by ALR of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Proposed Acquisition.

“Parent” is defined in the preamble to this Agreement.

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“Parties” means DHC, DHC Holdings LLC, the Requesting Parties and, for purposes of ARTICLE V only, ALR.

“Person” means and includes any natural person (whether acting on his or her own behalf or in a representative or fiduciary capacity) or Entity.

“Proposed Acquisition” means Purchaser’s and Parent’s acquisition of ALR pursuant to the Merger Agreement.

“Purchaser” is defined in the preamble to this Agreement.

“Requesting Parties” means ABP Trust, Parent, Purchaser and Adam Portnoy.

“RMR” means The RMR Group LLC, a Maryland limited liability company.

“Tender Offer Price” means $1.31 per ALR Common Share.

SECTION 1.2        Construction.

(a)              Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written,” “in writing” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (v) words of one gender shall be construed to apply to each gender; (vi) all pronouns and any variations thereof refer to the masculine, feminine or neuter as the context may require; (vii) “Articles” and “Sections,” refer to Articles and Sections of this Agreement unless otherwise specified; (viii) “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (ix) “dollars” and “$” mean United States Dollars; and (x) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if.”

(b)             Descriptive headings herein are for convenience of reference only and shall not control or affect the meaning or construction of any provision of this Agreement.

Article IIDHC CONSENTS AND WAIVERS

Section 2.1         DHC Consents. Subject to the terms and conditions of this Agreement, DHC, on its behalf and on behalf of its applicable subsidiaries, and for the express benefit of the Requesting Parties, the Collateral Persons and ALR and its applicable subsidiaries:

(a)              consents to the grant by the ALR Board of the Ownership Limitation Exceptions; and

(b)             waives any default or event of default under any DHC/ALR Agreement arising or resulting from the execution of the Merger Agreement or the consummation of the transactions contemplated thereby, including the Proposed Acquisition, or the grant of the Ownership Limitation Exceptions.

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Nothing in this Section 2.1 constitutes a waiver of, or the grant of any exception to, any of the transfer or ownership restrictions set forth in Article VII of DHC’s Charter by any Requesting Party or Collateral Person.

Article IIITENDER OF DHC ALR SHARES

Section 3.1         Tender of DHC ALR Shares. The DHC Parties hereby covenant and agree to tender or cause to be tendered the DHC ALR Shares into the tender offer to be commenced by Purchaser in accordance with the Merger Agreement within ten (10) Business Days following the commencement of such tender offer. The DHC Parties shall not withdraw or cause the DHC ALR Shares to be withdrawn from such tender offer unless and until the Merger Agreement is validly terminated in accordance with its terms.

Section 3.2         Opportunity to Invest. The Requesting Parties hereby agree that, subject to consummation of Proposed Acquisition, at any time prior to December 31, 2023, DHC shall have the right to acquire, or designate one or more of its controlled affiliates to acquire, in a single private transaction, a number of shares of common stock of the Surviving Corporation (as defined in the Merger Agreement) constituting a percentage of the then issued and outstanding shares of common stock of the Surviving Corporation up to the percentage that the DHC ALR Shares constituted of the fully-diluted ALR Common Shares as of immediately prior to the Offer Acceptance Time (as defined in the Merger Agreement) based on the Tender Offer Price and otherwise pursuant to a stockholders agreement to be entered into at the time of such repurchase on such terms as are negotiated and mutually agreed by the parties thereto. For the avoidance of doubt, such right may be exercised in whole or in part, but only once.

Article IV
CONDITIONS TO CONSENTS

The effectiveness of Article II and the consents granted thereunder are subject to the satisfaction of the following terms and conditions:

Section 4.1         Merger Agreement. The Merger Agreement shall have been executed and delivered by ALR and each of the parties thereto.

Section 4.2         Execution of Agreement. The Requesting Parties shall have executed and delivered this Agreement.

Section 4.3         Representations and Warranties. The representations and warranties of the Requesting Parties set forth in this Agreement shall be true and correct as of the date of this Agreement in all material respects.

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Article VAMENDMENTS

Section 5.1       Amendments to DHC/ALR Agreements. The Parties hereby agree that, on and as of the Closing Date (as defined in the Merger Agreement), the DHC/ALR Agreements will be amended to eliminate any change of control default or event of default provisions, as set forth below:

(a)             The Management Agreement will be amended: (i) to delete Section 1.13 thereof in its entirety; (ii) to revise Section 12.05 thereof to delete clause (a); and (iii) to delete Section 15.01(d) thereof in its entirety.

(b)             The Guaranty will be amended to delete Section 3(j) in its entirety.

Section 5.2         Amendments to ALR Organizational Documents. The Parties hereby agree that, from and after the Closing Date, the organizational documents of ALR or the Surviving Corporation may be amended and restated from time to time in the sole discretion of Parent, subject to the terms and conditions of the Merger Agreement and of any stockholders agreement entered into as contemplated by Section 3.2.

Article VI
REPRESENTATIONS AND WARRANTIES

Section 6.1        Representations and Warranties of the DHC Parties. The DHC Parties hereby jointly and severally represent and warrant to the Requesting Parties as follows:

(a)             Each DHC Party has full legal right, power and authority to enter into, deliver and perform this Agreement. The execution, delivery and performance of this Agreement by DHC have been duly and validly authorized by the DHC Board and the Independent Trustees of DHC, acting separately, and the execution, delivery and performance of this Agreement by DHC Holdings LLC have been duly and validly authorized by its board of directors, and no other corporate proceedings on the part of any DHC Party are necessary to authorize this Agreement or the performance of this Agreement by such DHC Party. This Agreement has been duly and validly executed and delivered by each DHC Party and constitutes a valid, legal and binding agreement of such DHC Party, enforceable against such party in accordance with its terms.

(b)             No material consent, approval, authorization, license, clearance, filing or registration of or with any third Person, excluding any Governmental Entity, is required in order to permit any DHC Party to execute, deliver or perform this Agreement, except for those that have been obtained, made, or waived.

Section 6.2        Representations and Warranties of the Requesting Parties. The Requesting Parties hereby jointly and severally represent and warrant to DHC as follows:

(a)             Each Requesting Party that is not an individual is a trust or limited liability company, duly formed or organized, validly existing and in good standing under the laws of its jurisdiction of formation or organization, as applicable.

(b)             Each Requesting Party that is not an individual has all trust, or limited liability company, as applicable, power and authority, and each Requesting Party who is an individual has the capacity, to enter into, deliver and perform this Agreement. The execution, delivery and performance of this Agreement by each Requesting Party that is not an individual have been duly and validly authorized by its board of directors, trustees, manager or other governing body, as applicable, and no other trust, or limited liability company, as applicable, proceedings on the part of such Requesting Party is necessary to authorize this Agreement or the performance of this Agreement by such Requesting Party. This Agreement has been duly and validly executed and delivered by each Requesting Party and constitutes a valid, legal and binding agreement of such Requesting Party, enforceable against such party in accordance with its terms.

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(c)              No consent, approval, authorization, license, clearance, filing or registration of or with any Governmental Entity or third Person is required in order to permit any Requesting Party to execute, deliver or perform this Agreement except for those that have been obtained or made, or waived, or, in the case of the consummation of the Proposed Acquisition, will be obtained prior to such consummation.

(d)             The Requesting Parties do not actually own or Constructively Own five percent (5%) or more of any class of shares of beneficial interest of DHC. To the knowledge of the Requesting Parties, RMR does not actually own more than one percent (1%) of any class of shares of capital stock of ALR. To the knowledge of the Requesting Parties, no Person to whom ALR Common Shares are attributed from a Requesting Party under the Code (other than another Requesting Party or RMR or DHC) actually owns any shares of capital stock of ALR, except that a Family Member of a Requesting Party may Constructively Own (as defined in ALR’s Charter) ALR Common Shares of up to two-tenths of one percent (0.2%) by virtue of Constructive Ownership (as defined in ALR’s Charter) other than on account of attribution under the Code from a Requesting Party.

Article VII
REIT MATTERS

Section 7.1         DHC Ownership. In order to assist DHC and ALR with compliance under Section 856(d)(3) of the Code (specifically with respect to an “independent contractor” being sufficiently unrelated from any real estate investment trust that engages it), the Requesting Parties agree to notify DHC and ALR of acquisition(s) of shares of beneficial interest of DHC that they or any of their Affiliates might make (or of any other event) that could reasonably be expected to cause the Requesting Parties to actually own or Constructively Own five percent (5%) or more of any class of shares of beneficial interest of DHC. The Requesting Parties agree to coordinate with DHC and ALR in respect of their compliance with Section 856(d)(3) of the Code to the extent reasonably requested by DHC or ALR, including the Requested Parties refraining, and causing their Affiliates to refrain, from an acquisition of shares of beneficial interest of DHC if such acquisition would cause the Requesting Parties to actually own or Constructively Own five percent (5%) or more of any class of shares of beneficial interest of DHC. For the avoidance of doubt, the Requesting Parties shall not be required pursuant to this Section 7.1 to divest any of the ALR Common Shares that they may own as of the date hereof or acquire pursuant to the Proposed Acquisition.

Section 7.2         Tax Classification of ALR. Through December 31, 2023, the Parties shall cooperate to maintain the federal tax classification of ALR as a corporation within the meaning of Section 7701(a)(3) of the Code that is not a disregarded entity under the Code.

Article VIIIMISCELLANEOUS

Section 8.1         Notices.

(a)             Any and all notices, demands, consents, approvals, offers, elections and other communications required or permitted under this Agreement shall be deemed adequately given if in writing and the same shall be delivered either in hand or by mail or Federal Express or similar expedited commercial carrier, addressed to the recipient of the notice, postpaid and registered or certified with return receipt requested (if by mail), or with all freight charges prepaid (if by Federal Express or similar carrier).

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(b)             All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.

(c)             All such notices shall be addressed,

If to any Requesting Party, to:

c/o ABP Trust
Two Newton Place
255 Washington Street
Suite 300
Newton, MA 02458
Attn: Jennifer B. Clark

Email:  jclark@rmrgroup.com

with copies (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP
920 North King Street
Wilmington, DE 19801
Attn: Faiz Ahmad
Email:  Faiz.Ahmad@skadden.com

If to any DHC Party, to:

c/o Diversified Healthcare Trust
Two Newton Place
255 Washington Street
Newton, MA 02458
Attn: Jennifer F. Francis, President and Chief Executive Officer
Email:  jfrancis@rmrgroup.com

with copies (which shall not constitute notice) to:

Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attn: Lindsey A. Getz
Facsimile: (617) 338-2480

Section 8.2         Assignment; Successors; Third Party Beneficiaries.

(a)              Assignment. Except as set forth in this Section 8.2, this Agreement and the rights, interests and obligations of any Person hereunder may not be assigned, transferred or delegated and any assignment or attempted assignment in violation of this Section 8.2 shall be void ab initio. This Agreement and the rights, interests and obligations of DHC hereunder may be assigned, transferred or delegated by DHC to a successor of DHC by operation of law or to a Person who succeeds to all or substantially all the assets of DHC, which successor or Person agrees in a writing delivered to each Requesting Party to be subject to and bound by all interests and obligations set forth in this Agreement.

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(b)             Successors. This Agreement shall bind and inure to the benefit of, and be enforceable by, the Parties and the express third party beneficiaries of this Agreement and their respective successors and permitted assigns.

(c)              No Third Party Beneficiaries. Except as expressly provided in this Agreement (including pursuant to the consents to the grant by the ALR Board of the Ownership Limitation Exceptions granted pursuant to Section 2.1) with respect to ALR, the Collateral Persons and estates and spouses of Requesting Parties who are individuals, this Agreement is not intended to and does not confer any rights or remedies upon any Person other than the Parties. ALR and the Collateral Persons, by their acceptance of the benefits of this Agreement, agree to be bound by the terms of this Agreement.

Section 8.3         Prior Negotiations; Entire Agreement. This Agreement (including the documents and instruments referred to in this Agreement or entered into in connection therewith) constitute the entire agreement of the Parties and supersede all prior agreements, arrangements or understandings, whether written or oral, between the Parties with respect to the subject matter of this Agreement.

Section 8.4         Applicable Law; Arbitration. This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of the State of Maryland, with regard to its “choice of law” rules. Any “Dispute” (as such term is defined in the Management Agreement) under this Agreement shall be resolved through final and binding arbitration conducted in accordance with the procedures and with the effect of, arbitration as provided for in the Management Agreement.

Section 8.5         Severability. This Agreement shall be interpreted in such manner as to be effective and valid under applicable Law. If at any time subsequent to the date hereof, any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy in any respect, such provision will be enforced to the maximum extent possible given the intent of the Parties and the remaining provisions hereof shall remain in full force and effect.

Section 8.6         Fees and Expenses. The Requesting Parties shall pay all out-of-pocket fees and expenses (including attorneys’ fees) reasonably incurred and paid by DHC or DHC Holdings LLC in connection with the negotiation, preparation and execution of this Agreement and in connection with the consents and amendments described in Sections 2.1 and 5.1, or as otherwise agreed by DHC and the Requesting Parties, whether or not the Proposed Acquisition is consummated. Except as provided in the preceding sentence, all expenses incurred by the Parties shall be borne solely and entirely by the Party that has incurred the same.

Section 8.7         Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the Parties and delivered to the other Party (including via facsimile or other electronic transmission), it being understood that each Party need not sign the same counterpart.

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Section 8.8         Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, by the Party waiving compliance; provided, no amendment to any provision of this Agreement that references ALR shall be binding on ALR without its written consent. No delay on the part of any Party or ALR in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver of the part of any Party or ALR of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any Party or ALR otherwise may have at Law or in equity.

Section 8.9         Further Assurances. At any time or from time to time after the date hereof, the Parties agree to cooperate with each other, and at the request of any other Party or ALR, to execute and deliver any further instruments or documents and to take all such further action as the other Party may reasonably request in order to evidence or effectuate the transactions contemplated hereby and to otherwise carry out the intent of the Parties hereunder.

[Signature Page Follows]

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IN WITNESS WHEREOF, the Parties have executed this Consent and Amendment Agreement as of the date first above written, effective as of the date first above written.

DHC PARTIES:
DIVERSIFIED HEALTHCARE TRUST
/s/ Jennifer F. Francis
By:	Jennifer F. Francis
Its:	President and Chief Executive Officer
DHC HOLDINGS LLC
/s/ Jennifer F. Francis
By:	Jennifer F. Francis
Its:	President and Chief Executive Officer
REQUESTING PARTIES:
ABP TRUST
/s/ Adam D. Portnoy
By:	Adam D. Portnoy
Its:	President
ABP ACQUISITION LLC
/s/ Adam D. Portnoy
By:	Adam D. Portnoy
Its:	President
ABP ACQUISITION 2 LLC
/s/ Adam D. Portnoy
By:	Adam D. Portnoy
Its:	President
/s/ Adam D. Portnoy
Adam D. Portnoy

[Signature Page to Consent and Amendment Agreement]

ALR:
For purposes of ARTICLE V only, and otherwise acknowledged by:
ALERISLIFE INC.
/s/ Jeffrey C. Leer
By:	Jeffrey C. Leer
Its:	President and Chief Executive Officer

[Signature Page to Consent and Amendment Agreement]