-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Cffhdh1SobyzliRsmHy1xWxSrNx9Tf2JrbmC9wJPGapIg9JqeU9LgLwXVo3kEWdq N2f7NxKO6TN/DEe9R1fy7A== 0001029869-98-000648.txt : 19980512 0001029869-98-000648.hdr.sgml : 19980512 ACCESSION NUMBER: 0001029869-98-000648 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 7 333-26887 FILED AS OF DATE: 19980511 EFFECTIVENESS DATE: 19980511 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH & RETIREMENT PROPERTIES TRUST CENTRAL INDEX KEY: 0000803649 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 046558834 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: SEC FILE NUMBER: 333-52353 FILM NUMBER: 98615803 BUSINESS ADDRESS: STREET 1: 400 CENTRE ST CITY: NEWTON STATE: MA ZIP: 02158 BUSINESS PHONE: 6173323990 MAIL ADDRESS: STREET 1: 400 CENTRE STREET CITY: NEWTON STATE: MA ZIP: 02158 FORMER COMPANY: FORMER CONFORMED NAME: HEALTH & REHABILITATION PROPERTIES TRUST DATE OF NAME CHANGE: 19920703 S-3MEF 1 HEALTH AND RETIREMENT PROPERTIES TRUST FORM S-3 As filed with the Securities and Exchange Commission on May 11, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- 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 of incorporation or organization) (I.R.S. Employer Identification Number)
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, 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) --------------------- Copy to: Alexander A. Notopoulos, Jr., Esq. Sullivan & Worcester LLP One Post Office Square Boston, Massachusetts 02109 (617) 338-2800 --------------------- 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. [ ] ----------------------- CALCULATION OF REGISTRATION FEE
================================================================================================================================ 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 - -------------------------------------------------------------------------------------------------------------------------------- Common Shares of Beneficial Interest, par value $.01 per share ........................ 5,126,296 $19.875 $101,885,133 $30,056.12 ================================================================================================================================
(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. 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 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 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 ---------------------------------------- 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.
Signature Title Date --------- ----- ---- /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 ------------------------ David J. Hegarty as attorney in fact
EX-5.1 2 OPINION RE: LEGALITY 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. 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 EX-5.2 3 OPINION RE: LEGALITY 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, EX-23.1 4 CONSENTS OF EXPERTS AND COUNSEL 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 EX-23.2 5 CONSENTS OF EXPERTS AND COUNSEL 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 EX-23.3 6 CONSENTS OF EXPERTS AND COUNSEL 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 EX-99 7 ADDITIONAL EXHIBITS 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 ------------------------- Patrick F. 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