Registration No. 33-62135
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO.1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
HEALTH AND RETIREMENT PROPERTIES TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 04-6558834
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
OF INCORPORATION OR ORGANIZATION)
400 CENTRE STREET, NEWTON, MASSACHUSETTS 02158
(617) 332-3990
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DAVID J. HEGARTY
400 Centre Street
Newton, Massachusetts 02158
(617) 332-3990
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------------
COPIES TO:
LENA G. GOLDBERG, ESQ.
SULLIVAN & WORCESTER
One Post Office Square
Boston, Massachusetts 02109
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE TO THE PUBLIC: From time to time after the effective
date hereof, as determined by the Selling Shareholders.
All of the Shares offered hereby are offered for the respective
accounts of the Selling Shareholders.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, please check the following box. /x/
----------------------------
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS, DATED SEPTEMBER 25, 1995
PROSPECTUS
2,791,416 Shares
Health and Retirement Properties Trust
Common Shares of Beneficial Interest
Health and Retirement Properties Trust (the "Company" or "HRP") is a real
estate investment trust which invests primarily in retirement communities,
assisted living centers, nursing homes and other long term care facilities. On
September 22, 1995 the last reported sale price for the Shares on the New York
Stock Exchange was $15 3/4.
All of the 2,791,416 Shares offered hereby are being offered by the Selling
Shareholders.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
----------------------
<TABLE>
<CAPTION>
===============================================================================================
Underwriting Discounts Proceeds to
Price to Public and Commissions Selling Stockholders
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share ......... $ $0 $
- -----------------------------------------------------------------------------------------------
Total ............... $ $0 $
===============================================================================================
</TABLE>
The date of this Prospectus is _____________________.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a registration statement on Form S-3
(together with all exhibits, schedules and amendments thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Shares. This Prospectus, which is a part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement. Statements in this Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance reference is
made to the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference and the exhibits and schedules thereto. For further information
concerning the Company and the Offered Securities, reference is made to the
Registration Statement. Copies of the Registration Statement may be obtained
from the Commission at its principal office in Washington, D.C. upon payment of
the prescribed fee.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Commission. The
Registration Statement, the exhibits and schedules forming a part thereof and
the reports, proxy statements and other information filed by the Company with
the Commission can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the following regional offices of the
Commission: Chicago Regional Office, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661-2511; and New York Regional Office, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. In addition,
reports, proxy material and other information concerning the Company may be
inspected at the offices of The New York Stock Exchange ("NYSE"), 20 Broad
Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission pursuant
to the Exchange Act, are hereby incorporated in this Prospectus and specifically
made a part hereof by reference: (i) the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994, as amended; (ii) the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995 and June
30, 1995; (iii) the Company's Current Report on Form 8, dated May 16, 1995; and
(iv) the Company's Registration Statement on Form 8-A dated November 8, 1986, as
amended by Form 8 dated July 30, 1991. The consolidated financial statements of
Horizon Healthcare Corporation ("Horizon"), Commission file number 1-9369, at
and for the periods ended May 31, 1994 and February 28, 1995, are incorporated
herein by reference from Horizon's Annual Report on Form 10-K/A Amendment No. 3
for the fiscal year ended May 31, 1994, and Quarterly Report on Form 10-Q/A
Amendment No. 3 for the nine months ended February 28, 1995 and Item 7(b) of
Horizon's Current Report on Form 8-K, dated July 10, 1995; the consolidated
financial statements of GranCare, Inc. ("GranCare"), Commission file number
1-19571, at and for the year ended December 31, 1994 and the quarter ended June
30, 1995 are incorporated herein by reference from GranCare's Annual Report on
Form 10-K for the year ended December 31, 1994 and its Quarterly Report on Form
10-Q for the quarter ended June 30, 1995, respectively; and the consolidated
financial statements of Marriott International, Inc. ("Marriott"), Commission
file number 1-12188, at and for the fiscal year ended December 30, 1994 and the
quarter ended June 16, 1995 are incorporated herein by reference from Marriott's
Annual Report on Form 10-K for the year ended December 30, 1994 and its
Quarterly Report on Form 10-Q for the quarter ended June 16, 1995, respectively.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Offered Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained herein or
in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein (or in the applicable Prospectus
Statement), or in any other subsequently filed document that also is or is
deemed to be incorporated herein by reference, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
2
<PAGE>
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any and all of the information that has been incorporated by reference in
this Prospectus (excluding exhibits unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Requests for such copies should be made to the Company at its
principal executive offices, 400 Centre Street, Newton, Massachusetts 02158,
Attention: Investor Relations, telephone (617) 332-3990.
USE OF PROCEEDS
The Company will receive no proceeds from the sale of Shares by the Selling
Shareholders.
SELLING SHAREHOLDERS
The registration statement of which this Prospectus forms a part has not
been filed because of any present intention of the Selling Shareholders to sell
any of the Shares, but rather to facilitate the pledge by each Selling
Shareholder of all or a part of the Shares held by such Selling Shareholder to
one or more banks or brokerage houses as collateral for loans to such Selling
Shareholder. The Selling Shareholders are (i) John F. Chapple, III, and (ii)
HRPT Advisors, Inc., a Delaware corporation which acts as investment advisor to
the Company ("Advisors"). Prior to the offering of Shares made hereby, Mr.
Chapple owned 1,777,766 Shares (3.0% of the outstanding Shares) and Advisors
owned 1,013,650 Shares (1.7% of the outstanding Shares). Because the Shares the
offering and sale of which are registered hereby are being registered to
facilitate the pledge thereof and because this offering is not being
underwritten on a firm commitment basis, no estimate can be given as to the
number or percentage of Shares which will be held by the Selling Shareholders
upon termination of this offering. See "Plan of Distribution."
Mr. Chapple acquired the Shares offered hereby in a transaction in 1994 in
which companies controlled by Mr. Chapple sold the real property, buildings and
equipment used in the operation of nine nursing facilities to the Company in
exchange for the Shares. Mr. Chapple has had no other position, office or other
material relationship with the Company or its affiliates.
Advisors is owned by Gerard M. Martin and Barry M. Portnoy, who are
Trustees of the Company. Messrs. Martin and Portnoy and David J. Hegarty,
President of the Company, are the directors of Advisors and Mr. Hegarty and Ajay
Saini, Treasurer of the Company, are President and Treasurer, respectively, of
Advisors.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the sale of Shares offered
hereby The registration statement of which this Prospectus forms a part has not
been filed because of any present intention of the Selling Shareholders to sell
any of the Shares. Rather, each Selling Shareholder intends to pledge all or a
part of the Shares held by such Selling Shareholder to one or more banks or
brokerage houses as collateral for loans to such Selling Shareholder. In the
event of a default under a loan to a Selling Shareholder, which loan is secured
by the pledge of Shares the offer and sale of which is registered hereby, the
lender will have the ability to cause such Selling Shareholder to sell such
Shares pursuant to the registration statement of which this Prospectus forms a
part. The Shares may be sold from time to time to purchasers directly by the
Selling Shareholders at the direction of such lender or lenders or otherwise.
Alternatively, the Selling Shareholders, at the direction of such lender or
lenders or otherwise, may from time to time offer the Shares through
underwriters, dealers or agents who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Shareholders
and/or the purchasers of Shares for whom they may act as agent. The Selling
Shareholders and any such underwriters, dealers or agents who participate in the
distribution of the Shares may be deemed to be underwriters, and any profits on
the sale of the Shares by them and any discounts, commissions or concessions
received by any such underwriters, dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. To the extent
the Selling Shareholders may be deemed to be underwriters, the Selling
Shareholders may be subject to certain statutory liabilities of the Securities
Act, including but not limited to, Sections 11, 12 and 17 of the Securities Act
and Rule 10b-5 under the Exchange Act. At any time a particular offer of the
Shares is made pursuant to this Prospectus,
3
<PAGE>
if required, a prospectus supplement will be distributed that will set forth the
aggregate amount of the Shares being offered and the terms of the offering,
including the name or names of any underwriters, dealers or agents, any
discounts, commissions and other items constituting compensation from the
Selling Shareholders and any discounts, commissions or concessions allowed or
reallowed or paid to dealers. Such prospectus supplement and, if necessary, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part will be filed with the Commission to reflect the disclosure of
additional information with respect to the distribution of the Shares.
The Shares may be sold from time to time in one or more transactions at a
fixed offering price, which may be changed, or at varying prices determined at
the time of sale or at negotiated prices. The Shares may be sold in transactions
in which this Prospectus is delivered or, for Selling Shareholders who are not
underwriters and who are not affiliates of the Company, in which this Prospectus
is not delivered. Such prices will be determined by the Selling Shareholders or
by agreement between the Selling Shareholders and underwriters or dealers.
The Selling Shareholders and any other person participating in such
distribution may be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including without limitation Rules 10b-3,
10b-6 or 10b-7, which provisions may limit the timing or purchases and sales of
any of the Shares by the Selling Shareholders and any other such person.
Furthermore, under Rule 10b-6 under the Exchange Act, to the extent applicable,
any person engaged in a distribution of the Shares may not simultaneously engage
in marketmaking activities with respect to the particular Shares being
distributed for a period of nine business days prior to the commencement of such
distribution. All of the foregoing may affect the marketability of the Shares
and the ability of any person or entity to engage in marketmaking activities
with respect to the Shares.
The Company and the Shareholders entered into registration rights
agreements (the "Registration Rights Agreements") pursuant to which the Company
agreed to register the Shares held by the Selling Shareholders and maintain an
effective registration statement for a period of time after the registration
statement is declared effective by the Commission. The Shares registered
hereunder are being registered pursuant to the Registration Rights Agreements.
Pursuant to the Registration Rights Agreements, the Company agreed to pay all of
the expenses incident to the registration, offering and sale of the Shares to
the public (other than commissions, fees and discounts of underwriters, dealers
or agents). Under the Registration Rights Agreements, the Selling Shareholders
will be indemnified by the Company against certain civil liabilities, including
liabilities under the Securities Act and the Company will be indemnified by the
Selling Shareholders against certain other civil liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the Shares offered by the Company
will be passed upon for the Company by Sullivan & Worcester, Boston,
Massachusetts. Sullivan & Worcester will rely, as to all matters of Maryland
law, upon the opinion of Piper & Marbury L.L.P., Baltimore, Maryland. Barry M.
Portnoy, a partner in the firm of Sullivan & Worcester, is a Trustee of the
Company, a director and 50% shareholder of Advisors, Connecticut Subacute
Corporation ("CSC"), Connecticut Subacute Corporation II ("CSCII"), New
Hampshire Subacute Corporation ("NHSC") and Vermont Subacute Corporation ("VSC")
and a director of Horizon Healthcare Corporation ("Horizon"). Sullivan &
Worcester represents the Advisor, CSC, CSCII, NHSC, VSC and certain affiliates
of each of the foregoing on various matters. CSC, CSCII, NHSC, VSC and Horizon
are tenants of the Company.
EXPERTS
The financial statements of the Company appearing in the Company's Annual
Report (Form 10-K) for the year ended December 31, 1994 and the consolidated
financial statements of GranCare appearing in the GranCare Annual Report (Form
10-K) for the year ended December 31, 1994, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their reports thereon included
therein and incorporated herein by reference. Such financial statements are
incorporated herein by reference in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
4
<PAGE>
The consolidated financial statements and schedules of Horizon incorporated
by reference in this Prospectus and elsewhere in the registration statement to
the extent and for the periods indicated in their reports, have been audited by
Arthur Andersen LLP, independent public accountants, and are included herein in
reliance upon the authority of said firms as experts in giving said reports.
The consolidated financial statements and schedules of Marriott
incorporated by reference in this Prospectus and elsewhere in the registration
statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are included
herein in reliance upon the authority of said firm as experts in giving said
report. Reference is made to said report, which includes an explanatory
paragraph with respect to the change in the method of accounting for income
taxes as discussed in "Income Taxes" in the notes to the consolidated financial
statements.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED OCTOBER 9, 1986, A
COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY
FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE
OF MARYLAND, 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.
5
<PAGE>
No dealer, sales person or other individual has been authorized to give any
information or make any representations not contained in the Prospectus in
connection with the offering covered by this Prospectus. If given or made, such
information or representations must not be relied upon as having been authorized
by the Company or the Selling Shareholders. This Prospectus does not constitute
and offer to sell or a solicitation of an offer to buy, any securities other
than the registered securities to which it relates in any jurisdiction where, or
to any person to whom, it is unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus or any sale made hereunder shall, under
any circumstances, create an implication that there has not been any change in
the facts set forth in this Prospectus or in the affairs of the Company since
the date hereof.
TABLE OF CONTENTS
Page
Available Information........................... 2
Incorporation of Certain Documents
by Reference............................... 2
Use of Proceeds................................. 3
Selling Shareholder............................. 3
Plan of Distribution............................ 3
Legal Matters................................... 4
Experts......................................... 4
<PAGE>
HEALTH AND RETIREMENT
PROPERTIES TRUST
2,791,416 Shares
---------------------
PROSPECTUS
---------------------
________ __, 199_
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the amount of fees and expenses to be
incurred in connection with the issuance and distribution of the Offered
Securities registered hereby, other than underwriting discounts and commissions.
Registration Fee Under Securities Act ...................... $ 14,558.68
Blue Sky Fees and Expenses ................................. 0.00
Legal Fees ................................................. 25,000.00
Accounting Fees ............................................ 50,000.00
Printing and Engraving ..................................... 0.00
Miscellaneous Fees ......................................... 5,000.00
----------
Total ................................................... $ 94,558.68
==========
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Section 7.4 of the Company's Declaration of Trust, filed as
Exhibit 3.1 to this Registration Statement, which provides for indemnification
of Trustees and officers of the Company, is hereby incorporated by reference.
Reference is made to Section 7 of the Underwriting Agreements
(Exhibits 1.1 and 1.2 hereto) with respect to certain provisions for
indemnification by the Underwriters of the Company, Trustees, officers and
controlling persons under certain circumstances.
ITEM 16. EXHIBITS.
5.1- Opinion of Sullivan & Worcester
5.2- Opinion of Piper & Marbury L.L.P
8 - Opinion of Sullivan & Worcester
23.1- Consent of Ernst & Young LLP
23.2- Consent of Arthur Andersen LLP
23.3- Consent of Arthur Andersen LLP
23.4- Consent of Sullivan & Worcester (included in Exhibits 5.1 and 8)
23.5- Consent of Piper & Marbury (included in Exhibit 5.2)
24 - Power of Attorney (included at page II-4)
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
II-1
<PAGE>
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the Securities offered herein, and the
offering of such Securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the Securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange of 1934 that is incorporated by reference in
this registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the Securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is public policy as
expressed in such Act and will be governed by the final adjudication of such
issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Newton, Commonwealth of Massachusetts on
September 25, 1995
HEALTH AND RETIREMENT PROPERTIES TRUST
By: DAVID J. HEGARTY
David J. Hegarty, President
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant's Registration Statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
DAVID J. HEGARTY President, Secretary and Chief September 25, 1995
- ---------------------------- Operating Officer
David J. Hegarty (principal executive officer)
AJAY SAINI Treasurer September 25, 1995
- ---------------------------- (principal financial and
Ajay Saini accounting officer)
REV. JUSTINIAN MANNING, C.P.* Trustee September 25, 1995
- ------------------------------
Rev. Justinian Manning, C.P.
BARRY M. PORTNOY * Trustee September 25, 1995
- --------------------------------
Barry M. Portnoy
GERARD M. MARTIN* Trustee September 25, 1995
- --------------------------------
Gerard M. Martin
*By DAVID J. HEGARTY
David J. Hegarty,
Attorney-in-fact
</TABLE>
II-3
<PAGE>
POWER OF ATTORNEY
The undersigned Officers and Trustees of Health and Retirement Properties
Trust hereby severally constitute David J. Hegarty, Gerard M. Martin and Barry
M. Portnoy, and each of them to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-3 herewith filed with the
Securities and Exchange Commission, and any and all amendments thereto, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys to the Registration Statement and any and all amendments to the
Registration Statement.
Witness our hands and seals on the dates set forth below.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
DAVID J. HEGARTY President, Secretary and Chief August 24, 1995
- ---------------------------- Operating Officer
David J. Hegarty
AJAY SAINI Treasurer September 25, 1995
- ----------------------------
Ajay Saini
REV. JUSTINIAN MANNING, C.P. Trustee August 24, 1995
- ------------------------------
Rev. Justinian Manning, C.P.
BARRY M. PORTNOY Trustee August 24, 1995
- ----------------------------
Barry M. Portnoy
GERARD M. MARTIN Trustee August 24, 1995
- ----------------------------
Gerard M. Martin
</TABLE>
II-4
Exhibit 5.1
SULLIVAN & WORCESTER
One Post Office Square
Boston, Massachusetts 02109
September 22, 1995
Health and Retirement Properties Trust
400 Centre Street
Newton, MA 02158
Ladies and Gentlemen:
In connection with the registration by Health and Rehabilitation
Properties Trust, a Maryland real estate investment trust (the "Company"), of
2,791,416 Common Shares of Beneficial Interest, $.01 per share, of the Company
(the "Shares"), the following opinion is furnished to you to be filed with the
Securities and Exchange Commission as Exhibit 5.1 to the Company's Registration
Statement (the "Registration Statement") on Form S-3, File No. 33-62135, under
the Securities Act of 1933, as amended (the "Act").
We have acted as counsel for the Company in connection with preparation
of the Registration Statement, and we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Registration
Statement, corporate records, certificates and statements of officers and
accountants of the Company and of public officials, and such other documents as
we have considered necessary in order to furnish the opinion hereinafter set
forth.
We are members of the bar of The Commonwealth of Massachusetts.
Accordingly, we do not purport to be expert on or generally familiar with and we
express no opinion with respect to the laws of any state other than The
Commonwealth of Massachusetts or of any country other than The United States of
America. We have, with your consent, rendered our opinions herein in regard to
certain matters of Maryland law relating to the Shares solely in reliance on,
and solely to the extent covered by, the opinion of Piper & Marbury, a copy of
which is attached hereto.
Based on and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable by the Company, with no personal
<PAGE>
Health and Retirement Properties Trust
September 22, 1995
Page 2
liability attaching to the holders of the Shares except as described in the
Company's Registration Statement on Form 8-A dated November 8, 1986, as amended
by Form 8 dated July 30, 1991, and incorporated by reference into the Prospectus
forming a part of the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectuses
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or under the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester
SULLIVAN & WORCESTER
Exhibit 5.2
PIPER & MARBURY
L.L.P.
Charles Center South
36 South Charles Street
Baltimore, Maryland 21201-3018
410-539-2530
Fax: 410-539-0489
September 22, 1995
Sullivan & Worcester
One Post Office Square
Boston, MA 02109
Re: Offering of Common Shares of Beneficial
Interest of Health and Retirement Properties Trust
Ladies and Gentlemen:
Health and Retirement Properties Trust, a Maryland real estate
investment trust (the "Company"), has filed with the Securities and Exchange
Commission a Registration Statement on Form S-3 (Registration No. 33-62135) and
amendments thereto (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to the sale by
certain selling stockholders of the Company of an aggregate of 2,791,416 shares
of the Company's common shares of beneficial interest, par value $0.01 per share
(the "Shares").
We have acted a special Maryland counsel to the Company in connection
with matters of Maryland law relevant to the preparation of the Registration
Statement and we have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Third Amendment and Restatement of
Declaration of Trust of the Company; (ii) By-laws of the Company, as amended;
(iii) the Registration Statement and all exhibits thereto; (iv) the Certificate
of Good Standing issued by the Maryland State Department of Assessments and
Taxation dated September 21, 1995; (v) the Officer's Certificate of the Company
dated the date hereof (the "Certificate"), and (vi) such other documents as we
have considered necessary in order to furnish the opinion hereinafter set forth.
<PAGE>
Sullivan & Worcester
September 22, 1995
Page2
In such examination we have assumed, without independent investigation,
the genuineness of all signatures, the legal capacity of all individuals who
have executed any of the aforesaid documents, the authenticity of all documents
submitted to us as originals, and the conformity with originals of all documents
submitted to us as copies (and the authenticity of the originals of such copies)
and the accuracy and completeness of all public records reviewed. We have
assumed that all representations as to factual matters set forth in the
Certificate are true and correct, and we have not independently verified the
matters stated therein.
The opinions expressed below are limited to the law of Maryland,
provided, however, that we express no opinion as to the application of Maryland
securities laws.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and are validly issued, fully paid and non-assessable by
the Company, with no personal liability attaching to the holders of the Shares
except as described in the Company's Registration Statement on Form 8-A dated
November 8, 1986, as amended by Form 8 dated July 30, 1991, and incorporated by
reference into the Prospectus forming a part of the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the prospectus forming part of the Registration Statement. In giving
such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Act under the rules and
regulations of the Securities and Exchange Commission promulgated thereunder. We
further consent to the reliance on this opinion by your firm in rendering its
opinion to the Company.
Very truly yours,
Piper & Marbury L.L.P.
Exhibit 8.1
SULLIVAN & WORCESTER
One Post Office Square
Boston, Massachusetts 02109
September 22, 1995
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Ladies and Gentlemen:
In connection with the registration by Health and Rehabilitation
Properties Trust, a Maryland real estate investment trust (the "Company"), of
2,791,416 Common Shares of Beneficial Interest, $.01 per share, of the Company
(the "Shares"), the following opinion is furnished to you to be filed with the
Securities and Exchange Commission (the "SEC")as Exhibit 8 to the Company's
Registration Statement on Form S-3, File No. 33-62135 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act").
We have acted as counsel for the Company in connection with the
Registration Statement and we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement,
corporate records, certificates and statements of officers and accountants of
the Company and of public officials, and such other documents as we have
considered relevant and necessary in order to furnish the opinion hereinafter
set forth. Specifically, and without limiting the generality of the foregoing,
we have reviewed Amendment No. 1 to the Registration Statement dated September
25, 1995 and the prospectus dated September 25, 1995 (the "Prospectus") which
forms a part of the Registration Statement, the Company's Declaration of Trust
and By-Laws. We have reviewed the sections in the Company's Annual Report on
Form 10-K for the year ended December 31, 1994, as amended (the "Form 10-K"),
captioned "Federal Income Tax Considerations" and "ERISA Plans, Keogh Plans and
Individual Retirement Accounts," and we have prepared the opinions of counsel
referred to in such sections. With respect to all questions of fact on which
such opinions are based, we have assumed the accuracy and completeness of and
have relied on the information set forth in the Prospectus and in the documents
incorporated therein by reference, and on representations made to us by the
Trustees. We have not independently verified such information; nothing has come
to our attention, however, which would lead us to believe that we are not
entitled to rely on such information.
<PAGE>
Health and Retirement Properties Trust
September 22, 1995
Page 2
The opinion set forth below is based upon the Internal Revenue Code of
1986, as amended, the Treasury Regulations issued thereunder, administrative
interpretations thereof and judicial decisions with respect thereto, all as of
the date hereof (collectively the "Tax Laws") and upon the Employee Retirement
Income Security Act of 1974, as amended, the Department of Labor regulations
issued thereunder, administrative interpretations thereof and judicial decisions
with respect thereto, all as of the date hereof (collectively, the "ERISA
Laws"). No assurance can be given that the Tax Laws or the ERISA Laws will not
change. In rendering the opinions set forth in the Form 10-K which are
incorporated by reference into the Prospectus, we have made certain assumptions
and expressed certain conditions and qualifications, all of which assumptions,
conditions and qualifications are incorporated herein by reference.
Based upon and subject to the foregoing, we are of the opinion that the
discussions with respect to federal income tax matters in the sections of the
Form 10-K captioned "Federal Income Tax Considerations" and "ERISA Plans, Keogh
Plans and Individual Retirement Accounts," in all material respects are accurate
and fairly summarize the federal income tax issues and ERISA Laws issues which
are material to an investment in the Shares, and hereby confirm that the
opinions of counsel referred to in said sections represent our opinions on the
subject matter thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or under the rules and regulations of the
SEC promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester
SULLIVAN & WORCESTER
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the incorporation by reference in the Registration Statement (Form S-3) of
Health and Retirement Properties Trust of (a) our report dated February 9, 1995
with respect to the financial statements and schedules of Health and Retirement
Properties Trust included in Health and Retirement Properties Trust's Annual
Report (Form 10-K) for the year ended December 31, 1994, and (b) our report
dated February 21, 1995 with respect to the consolidated financial statements
and schedules of GranCare, Inc. included in GranCare Inc.'s Annual Report (Form
10-K) for the year ended December 31, 1994, all filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
September 21, 1995
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Company's registration statement (file number
33-62135) of our report dated January 27, 1995 included in the Marriott
International, Inc. Form 10-K for the year ended December 30, 1994 and to all
references to our Firm included in the registration statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
September 25, 1995
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
July 22, 1994 included in Horizon Healthcare Corporation's Form 10-K/A Amendment
No. 3 for the year ended May 31, 1994 and to all references to our Firm included
in this registration statement.
ARTHUR ANDERSEN LLP
Albuquerque, New Mexico
September 25, 1995
