As filed with the Securities and Exchange Commission on May 11, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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HEALTH AND RETIREMENT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
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<TABLE>
<CAPTION>
Maryland 04-6558834
<S> <C>
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
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)
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David J. Hegarty, President
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
(617) 332-3990
(Name, address, including zip code, telephone number,
including area code, of agent for service)
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Copy to:
Alexander A. Notopoulos, Jr., Esq.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
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Approximate date of commencement of proposed sale to the public: As soon as
praticable after this Registration Statement becomes effective.
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, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [X] 333-26887
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Maximum Maximum
Amount to Offering Price Aggregate Offering Amount of
Title of Each Class of Securities to be Registered be Registered Per Share (1) Price Registration Fee
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<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest,
par value $.01 per share ........................ 5,126,296 $19.875 $101,885,133 $30,056.12
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</TABLE>
(1) Based on the average of the high and low prices for Shares on the New York
Stock Exchange on May 4, 1998 solely for purposes of determining the amount of
the registration fee pursuant to Rule 457.
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The information in the Registration Statement filed by Health and
Retirement Properties Trust with the Securities and Exchange Commission on Form
S-3 (File No. 333-26887) pursuant to the Securities Act of 1933, as amended, is
incorporated by reference into this Registration Statement.
2
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
5.1 Opinion of Sullivan & Worcester LLP (Filed herewith).
5.2 Opinion of Piper & Marbury L.L.P. (Filed herewith).
8.1 Opinion of Sullivan & Worcester LLP as to certain tax matters
(incorporated by reference to the Company's Annual Report on
Form 10-K).
23.1 Consent of Arthur Andersen LLP (Filed herewith).
23.2 Consent of Arthur Andersen LLP (Filed herewith).
23.3 Consent of Ernst & Young LLP (Filed herewith).
23.4 Consent of Sullivan & Worcester LLP
(included in Exhibit 5.1 hereto).
23.5 Consent of Piper & Marbury L.L.P.
(included in Exhibit 5.2 hereto).
24 Power of Attorney (incorporated by reference from page II-4
of the Company's Registration Statement on Form S-3,
File No. 333-26887)
99 Consent of Nominee Trustee.
3
<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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on May 11th,
1998
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ David J. Hegarty
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David J. Hegarty
President and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ David J. Hegarty
- ----------------------------------------- President and Chief Operating May 11, 1998
David J. Hegarty Officer (principal executive officer)
/s/ Ajay Saini Treasurer and Chief Financial May 11, 1998
- ----------------------------------------- Officer
Ajay Saini
Bruce M. Gans, M.D.* Trustee May 11, 1998
- -----------------------------------------
Bruce M. Gans, M.D.
Rev. Justinian Manning, C.P.* Trustee May 11, 1998
- -----------------------------------------
Rev. Justinian Manning, C.P.
/s/ Gerard M. Martin Managing Trustee May 11, 1998
- -----------------------------------------
Gerard M. Martin
/s/ Barry M. Portnoy Managing Trustee May 11, 1998
- -----------------------------------------
Barry M. Portnoy
*By: /s/ David J. Hegarty
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David J. Hegarty
as attorney in fact
</TABLE>
Exhibit 5.1
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
May 11, 1998
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Ladies and Gentlemen:
In connection with the registration by Health and Retirement Properties
Trust, a Maryland real estate investment trust (the "Company"), of 5,126,296
common shares of beneficial interest, $.01 par value, of the Company (the
"Common Shares"), the following opinion is furnished to the Company to be filed
with the Securities and Exchange Commission (the "Commission") as Exhibit 5.1 to
the Company's Registration Statement on Form S-3, under the Securities Act of
1933, as amended (the "Securities Act"), to be filed on or about the date hereof
pursuant to Rule 462(b) under the Securities Act (the "462(b) Registration
Statement") relating to the Company's Registration Statement on Form S-3 (no.
333-26887) (the "Registration Statement"), including the prospectus contained
therein (the "Prospectus"), which is incorporated by reference into the 462(b)
Registration Statement. The Registration Statement provides that the Common
Shares may be offered in amounts, at prices and on terms to be set forth in one
or more prospectus supplements (each a "Prospectus Supplement") to the
Prospectus contained in the Registration Statement.
In connection with this opinion, we have examined and relied upon a
copy of the Rule 462(b) Registration Statement to be filed with the Commission
on or about the date hereof, the Registration Statement, the Prospectus and a
preliminary Prospectus Supplement dated May 11, 1998 pertaining to the offering
of 25,000,000 of the Company's common shares of beneficial interest, $.01 par
value (the "Offering"). We have also examined and relied upon originals or
copies of such records, agreements and instruments of the Company, certificates
of public officials and of officers of the Company and such other documents and
records, and such matters of law, as we have deemed necessary as a basis for the
opinions hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies, which facts we have
not independently verified.
<PAGE>
Health and Retirement Properties Trust
May 11, 1998
Page 2
We express no opinion herein as to the laws of any jurisdiction other
than the Commonwealth of Massachusetts and the federal law of the United States,
and we express no opinion as to state securities or blue sky laws. Insofar as
this opinion involves matters of Maryland law we have, with your permission,
relied solely on the opinion of Piper & Marbury L.L.P., a copy of which is being
filed herewith as Exhibit 5.2 to the Registration Statement, and our opinion is
subject to the exceptions, qualifications and limitations therein expressed.
Based on and subject to the foregoing, we are of the opinion that, as
of the date hereof the Common Shares will be validly issued, fully paid and
non-assessable by the Company when (i) the Company files Articles Supplementary
to its Amended and Restated Declaration of Trust to increase its authorized
Common Shares from 125,000,000 to 150,000,000, as approved by the Company's
Board of Trustees on May 11, 1998, and (ii) certificates evidencing such Common
Shares shall have been duly executed, countersigned and registered and duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor (and in any event an amount at least equal to the par value thereof),
as provided in the final Prospectus Supplement pertaining to the Offering.
With respect to personal liability attaching to the holders of Common
Shares, we note the matters described in the Company's Registration Statement on
Form 8-A dated November 8, 1986, as amended by the Company's Form 8 dated July
30, 1991, with respect to Common Shares 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 Prospectus and
the Prospectus Supplement pertaining to the Offering. 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
Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
PIPER & MARBURY WASHINGTON
L.L.P. NEW YORK
CHARLES CENTER SOUTH PHILADELPHIA
36 SOUTH CHARLES STREET EASTON
BALTIMORE, MARYLAND 21201-3018
410-539-2530
FAX: 410-539-0489
May 11, 1998
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Re: Registration Statement on Form S-3 of
Health and Retirement Properties Trust_
Ladies and Gentlemen:
We have acted as special Maryland counsel to Health and Retirement
Properties Trust, a Maryland real estate investment trust (the "Company"), with
respect to the contemplated issuance by the Company from time to time of up to
5,126,296 common shares of beneficial interest, $.01 par value, of the Company
(the "Shares") under the Securities Act of 1933, as amended (the "Act"),
pursuant to a Registration Statement of the Company filed with the Securities
and Exchange Commission (the "Commission") pursuant to Rule 462(b) promulgated
under the Act (the "Registration Statement").
In our capacity as Maryland counsel, we have reviewed the following:
(a) The Declaration of Trust of the Company certified by an officer of the
Company, as amended to date (the "Declaration of Trust");
(b) A copy of the By-laws of the Company certified by an officer of the
Company, as in effect on the date hereof (the "By-laws");
(c) The Registration Statement;
(d) Certified resolutions of the Board of Trustees of the Company
authorizing the issuance of the Shares and the Registration Statement;
(e) A good standing certificate for the Company, of recent date, issued by
the Maryland State Department of Assessments and Taxation;
(f) An Officer's Certificate of the Company dated as of the date hereof as
to certain factual matters (the "Officer's Certificate"); and
(g) Such other documents as we have considered necessary to the rendering
of the opinions expressed below. 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, the conformity with
originals of all documents submitted to us as copies and that all public records
received are accurate and complete. As to any facts material to this opinion
which we did not independently establish or verify, we have relied solely upon
the Officer's Certificate. We further assume that prior to the issuance of any
Shares, there will exist, under the Declaration of Trust, the requisite number
of authorized but unissued Shares.
On the basis of the foregoing we are of the opinion that:
1. The Company has been duly formed and is validly existing in good
standing as a real estate investment trust under the laws of the State of
Maryland.
2. When (i) the Shares have been duly and properly authorized for issuance
and (ii) the Shares have been duly issued, sold and delivered as contemplated in
the Registration Statement and any prospectus supplement relating thereto, the
Shares will be validly issued, fully paid and nonassessable.
The foregoing opinions are limited to the laws of the State of Maryland,
exclusive of securities or "blue sky" laws. We assume no obligation to
supplement this opinion if any applicable laws change after the date hereof or
if we become aware of any facts that might change the opinions expressed herein
after the date hereof. We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement and to the reference to our firm in the
Registration Statement.
Very truly yours,
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in Health and Retirement Properties Trust's registration statement on
Form S-3 of our report dated February 19, 1998 included in New Marriott MI,
Inc.'s (subsequently renamed "Marriott International, Inc.") Form 10-K for the
fiscal year ended January 2, 1998 (File No. 1-13881) and to all references to
our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Washington, D.C.
May 11, 1998
Exhibit 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 16, 1998 on
Hospitality Properties Trust included in Health and Retirement Properties
Trust's Form 8-K dated February 27, 1998 and incorporated by reference in Health
and Retirement Properties Trust's Form 10-K for the year ended December 31, 1997
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Washington, D.C.
May 11, 1998
Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
on Form S-3 of Health and Retirement Properties Trust to register no more than
5,134,636 additional shares pursuant to Rule 462(b) under the Securities Act of
our report dated February 9, 1998, with respect to the consolidated financial
statements of Health and Retirement Properties Trust incorporated by reference
in its Annual Report (Form 10-K) for the year ended December 31, 1997 and the
related financial statement schedules included therein and our report dated
March 26, 1998 with respect to the statement of revenues and certain expenses of
an office building owned by MSA 1600 Associates, L.P. for the year ended
December 31, 1997, included in the Current Report on Form 8-K of Health and
Retirement Properties Trust dated March 30, 1998, both filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
May 8, 1998
Exhibit 99
PATRICK F. DONELAN
12 Hook Road
Rye, New York 10580
May 11, 1998
Board of Trustees
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Dear Sirs:
I hereby consent to my being named as nominee to the Board of Trustees
of Health and Retirement Properties Trust (the "Company") (i) in the Company's
Registration Statement No. 333-26887 and any prospectus and prospectus
supplement included therein and any registration statement related thereto filed
by the Company pursuant to Rule 462(b) of the Securities Act of 1933, as
amended, (ii) in the Company's supplemental proxy materials relating to its
Annual Meeting of Shareholders to be commenced on May 12, 1998, (iii) in any of
the Company's filings pursuant to Rule 13, 14 or 15 of the Securities Exchange
Act of 1934, as amended, and (iv) in the Company's Registration Statements Nos.
33-62135, 333-47815 and 333-47817.
Sincerely,
/s/ Patrick F. Donelan
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Patrick F. Donelan
