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 7, 2001
Senior Housing Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Re: Senior Housing Properties Trust Registration Statement on Form S-3
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act") of Senior Housing
Properties Trust, a Maryland real estate investment trust (the "Company"), and
the other co-registrants named therein (collectively with the Company, the
"Registrants"), you have requested our opinions set forth below. The
co-registrants are: (i) HRES1 Properties Trust, HRES2 Properties Trust, SPTGEN
Properties Trust, SPTIHS Properties Trust, SPTMISC Properties Trust, SPTMNR
Properties Trust, SPTMRT Properties Trust, SPTSUN Properties Trust and SPTSUN II
Properties Trust, each a Maryland real estate investment trust, and SHOPCO-AZ,
LLC, SHOPCO-CA, LLC, SHOPCO-COLORADO, LLC, SHOPCO-CT, LLC, SHOPCO-GA, LLC,
SHOPCO-IA, LLC, SHOPCO-KS, LLC, SHOPCO-MI, LLC, SHOPCO-MO, LLC, SHOPCO-NC, LLC,
SHOPCO-NE, LLC, SHOPCO-SD, LLC, SHOPCO-WI, LLC and SHOPCO-WY, LLC, each a
Delaware limited liability company, and SNH-CALIFORNIA, INC., SNH Holding Co.,
Inc., SNH-IOWA, INC., SNH-MICHIGAN, INC. and SNH-NEBRASKA, INC., each a Delaware
corporation, and SNH Capital Trust Holdings, a Maryland business trust
(collectively, the "Subsidiaries"), and (ii) SNH Capital Trust I, SNH Capital
Trust II and SNH Capital Trust III, each a Maryland business trust
(collectively, the "Capital Trusts").
You have provided us with a copy of such registration statement, which
you propose to file with the Securities and Exchange Commission (the
"Commission") on or about the date hereof. Such registration statement contains
a form of preliminary prospectus with respect to the offer and sale of up to
$500,000,000 in aggregate amount of one or more series of (i) debt securities of
the Company (the "Debt Securities"), (ii) preferred shares of beneficial
interest, $.01 par value per share, of the Company (the "Preferred Shares"),
(iii) depositary shares representing fractional interests in Preferred Shares
("Depositary Shares") evidenced by depositary receipts therefor ("Depositary
Receipts"), (iv) common shares of beneficial interest, $.01 par value per share,
of the Company (the "Common Shares"), (v) warrants to purchase one or more
classes of securities registered under the Registration Statement, (vi) trust
preferred securities of the Capital Trusts ("Trust Preferred Securities"), (vii)
guarantees by the Company of the Trust Preferred Securities (the "Trust
Guarantees") and (viii) guarantees by one or more of the Subsidiaries of
Senior Housing Properties Trust
May 7, 2001
Page 2
Debt Securities or Trust Guarantees of the Company or guarantees of one or more
co-registrants (the "Subsidiary Guarantees" and, together with the Debt
Securities, Preferred Shares, Depositary Shares, Common Shares, Trust Preferred
Securities and Trust Guarantees, the "Registered Securities"), in each case for
offering from time to time, as set forth in the final prospectus that forms a
part of the Registration Statement, as defined below (the "Prospectus"), and as
to be set forth in one or more final supplements to the Prospectus (each, a
"Prospectus Supplement").
As used in this opinion, the term "Registration Statement" means,
unless otherwise stated, such registration statement, as amended when declared
effective by the Commission (including any necessary post-effective amendments
thereto), and the term "Convertible Registered Securities" means Registered
Securities which are convertible into, exchangeable for or exercisable for other
Registered Securities, and the term "Underlying Registered Securities" means any
Registered Securities which are issuable upon conversion, exchange or exercise
of Convertible Registered Securities.
In connection with this opinion, we have examined and relied upon a
copy of the Registration Statement to be filed with the Commission on or about
the date hereof. We have also examined and relied upon originals or copies of
such records, agreements and instruments of the Registrants, certificates of
public officials and of officers of the Registrants 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.
We have necessarily assumed in connection with the opinions expressed
below that the terms and conditions of the Registered Securities and any related
indentures, agreements and instruments, except to the extent described in the
Registration Statement and the form of preliminary prospectus contained therein,
as originally filed, will be, and that any related proceedings of the
Registrants conducted after the date hereof will be conducted, (i) in accordance
with all applicable laws and each Registrants charter and bylaws, and (ii) not
in conflict with any contractual or other restrictions which are binding on any
Registrant, and that, without limiting the generality of the foregoing, any
agreements or instruments that are hereafter required to be filed as an exhibit
to the Registration Statement will be properly filed by an amendment thereto or
by the filing of a Form 8-K by the Company under the Securities Exchange Act of
1934, as amended, and properly incorporated by reference in the Registration
Statement, as permitted by the Securities Act and the rules and regulations of
the Commission thereunder.
To the extent that the obligations of any Registrant under each
Indenture, Warrant Agreement, Depositary Agreement or Guarantee Agreement (each
as defined below) may be dependent upon such matters, we have assumed for
purposes of this opinion that each Indenture Trustee, Warrant Agent, Depositary
and Guarantee Trustee (each as defined below) are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
Senior Housing Properties Trust
May 7, 2001
Page 3
of organization, and are duly qualified to engage in the activities contemplated
by, and have the requisite organizational and legal power and authority to
perform their respective obligations under, each Indenture, Warrant Agreement,
Depositary Agreement or Guarantee Agreement to which they are parties, that each
Indenture Trustee, Warrant Agent, Depositary and Guarantee Trustee will be in
compliance, generally with respect to acting as a trustee or agent under each
applicable Indenture, Warrant Agreement, Depositary Agreement or Guarantee
Agreement, with all applicable laws and regulations, and that each Indenture,
Warrant Agreement, Depositary Agreement and Guarantee Agreement will be the
valid and binding agreements of each party thereto (other than, in the case of
an indenture in the form filed as Exhibit 4.1, 4.2 or 4.3 to the Registration
Statement or a guarantee agreement in the form filed as Exhibit 4.19 to the
Registration Statement, when appropriately completed, the Company and each other
Registrant party thereto), enforceable against such parties in accordance with
their respective terms.
We express no opinion herein as to the laws of any jurisdiction other
than the laws of The Commonwealth of Massachusetts and the State of New York,
the General Corporation Law and the Limited Liability Company Act of the State
of Delaware and the federal laws of the United States of America, 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 Ballard Spahr Andrews & Ingersoll, LLC dated May 7, 2001, a copy
of which we understand you are filing herewith as Exhibit 5.2 to the
Registration Statement, and our opinion is subject to the exceptions,
qualifications and limitations therein expressed.
Our opinions set forth below with respect to the validity or binding
effect of any security or obligation are subject to (i) limitations arising
under applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws affecting the enforcement generally of the
rights and remedies of creditors and secured parties or the obligations of
debtors, (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity), including, without limitation, the discretion
of any court of competent jurisdiction in granting specific performance or
injunctive or other equitable relief, and (iii) an implied duty on the part of
the party seeking to enforce rights or remedies to take action and make
determinations on a reasonable basis and in good faith to the extent required by
applicable law.
Based on and subject to the foregoing, we are of the opinion that, as
of the date hereof:
1. Each series of Debt Securities will be validly issued and
binding obligations of the Company when (i) the Registration Statement
shall have become effective under the Securities Act and the indentures
filed as Exhibit 4.1, 4.2 and 4.3 to the Registration Statement,
including any necessary supplemental indenture, or any other indenture,
including any necessary supplemental indenture thereto, filed as an
exhibit to the Registration Statement, as the case may be (the
applicable indenture, as so filed and supplemented, the "Indenture"),
shall have been qualified under the Trust Indenture Act of 1939, as
amended, and the Indenture shall have been duly authorized, executed
and delivered by the Company and a trustee named thereunder (the
"Indenture Trustee"), (ii) a Prospectus Supplement with respect to such
series of Debt Securities and any related Subsidiary Guarantees shall
have been filed with the Commission pursuant to Rule 424
Senior Housing Properties Trust
May 7, 2001
Page 4
under the Securities Act, (iii) the Company's Board of Trustees or a
duly authorized committee thereof shall have duly adopted final
resolutions (the "Final Debt Resolutions") authorizing the issuance and
sale of such Debt Securities, each as contemplated by the Registration
Statement, the Prospectus, the applicable Prospectus Supplement and the
Indenture, and (iv) such series of Debt Securities shall have been (A)
duly executed by the Company and authenticated by the Indenture Trustee
as provided in the Indenture and the Final Debt Resolutions and (B)
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor, as provided in the Registration Statement, the
Prospectus, the applicable Prospectus Supplement, the Indenture and the
Final Debt Resolutions. If such Debt Securities are Underlying
Registered Securities, the opinion set forth in this paragraph is
subject to the further condition that the Convertible Registered
Securities relating to such Debt Securities, at the time of the
issuance thereof and of the conversion, exchange or exercise thereof,
are validly issued, fully paid and non-assessable by the Company or are
validly issued and binding obligations of the Company, as applicable.
2. Each Subsidiary Guarantee related to a series of Debt
Securities will be validly issued and binding obligations of the
Subsidiaries which are parties thereto when (i) the Registration
Statement shall have become effective under the Securities Act and the
applicable Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended, and such Indenture shall have been
duly authorized, executed and delivered by the Company, each such
Subsidiary and the Indenture Trustee, (ii) a Prospectus Supplement with
respect to such series of Debt Securities and the related Subsidiary
Guarantees shall have been filed with the Commission pursuant to Rule
424 under the Securities Act, (iii) the Board of Trustees or Board of
Directors, as the case may be, of each such Subsidiary shall have duly
adopted final resolutions (the "Final Guarantee Resolutions")
authorizing such Subsidiary Guarantee, each as contemplated by the
Registration Statement, the Prospectus, the applicable Prospectus
Supplement and such Indenture, (iv) such Subsidiary Guarantee shall
have been duly executed by each such Subsidiary as provided in such
Indenture and the Final Guarantee Resolutions, and (v) such Debt
Securities are the validly issued and binding obligations of the
Company.
3. The Depositary Shares will be validly issued, fully paid
and non-assessable by the Company and the Depositary Receipts will be
validly issued and will entitle the holders thereof to the rights
specified therein and in the applicable Depositary Agreement, when (i)
the related Preferred Shares have been duly authorized and validly
issued, fully paid and non-assessable, (ii) the Company's Board of
Trustees or a duly authorized committee thereof shall have duly adopted
resolutions (the "Final Depositary Shares Resolutions") approving one
or more depositary agreements, including a form of Depositary Receipt
set forth therein or related thereto (each, a "Depositary Agreement"),
relating to such Depositary Shares, between the Company and a financial
institution identified therein as depositary (each, a "Depositary"),
(iii) the applicable Depositary Agreement shall have been duly executed
and delivered by the Company and the Depositary, (iv) the related
Preferred Shares shall have been duly deposited with the Depositary
under the Depositary Agreement, and (v) the applicable Depositary
Receipts
Senior Housing Properties Trust
May 7, 2001
Page 5
shall have been duly executed by the Depositary as provided in the
applicable Depositary Agreement and the Final Depositary Shares
Resolutions and registered and shall have been duly delivered to the
purchasers thereof against payment of the agreed consideration
therefor, as provided in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement, the applicable Depositary
Agreement and the Final Depositary Shares Resolutions.
4. The Warrants will validly issued and binding obligations of
the Company when (i) the Registration Statement shall have become
effective under the Securities Act, (ii) a Prospectus Supplement with
respect to such Warrants shall have been filed with the Commission
pursuant to Rule 424 under the Securities Act, (iii) the Warrants shall
have been duly authorized by the Company, including by the due adoption
by the Company's Board of Trustees or a duly authorized committee
thereof of final resolutions (the "Final Warrant Resolutions")
authorizing the issuance and sale of such Warrants as contemplated by
the Registration Statement, the Prospectus and the applicable
Prospectus Supplement and approving one or more warrant agreements,
including a form of warrant set forth therein or related thereto (each,
a "Warrant Agreement"), establishing the terms and conditions of such
Warrants, between the Company and a financial institution identified
therein as warrant agent (each, a "Warrant Agent"), (iv) the applicable
Warrant Agreement shall have been duly executed and delivered by the
Company and the Warrant Agent, and (v) such Warrants shall have been
duly executed by the Company and authenticated by the Warrant Agent as
provided in the applicable Warrant Agreement and the Final Warrant
Resolutions and registered and shall have been duly delivered to the
purchasers thereof against payment of the agreed consideration
therefor, as provided in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement, the applicable Warrant Agreement
and the Final Warrant Resolutions. If such Warrants are Underlying
Registered Securities, the opinion set forth in this paragraph is
subject to the further condition that the Convertible Registered
Securities relating to such Warrants, at the time of the issuance
thereof and of the conversion, exchange or exercise thereof, are
validly issued, fully paid and non-assessable by the Company or are
validly issued and binding obligations of the Company, as applicable.
5. Each Trust Guarantee will be a validly issued and binding
obligation of the Company when (i) the Registration Statement shall
have become effective under the Securities Act and the guarantee
agreement filed as Exhibit 4.19 to the Registration Statement (as so
filed, the "Guarantee Agreement"), shall have been qualified under the
Trust Indenture Act of 1939, as amended, and the Guarantee Agreement
shall have been duly authorized, executed and delivered by the Company
and a trustee named thereunder (the "Guarantee Trustee"), (ii) a
Prospectus Supplement with respect to the related series of Trust
Preferred Securities and such Trust Guarantee shall have been filed
with the Commission pursuant to Rule 424 under the Securities Act,
(iii) the Company's Board of Trustees or a duly authorized committee
thereof shall have duly adopted final resolutions authorizing such
Trust Guarantee, as contemplated by the Registration Statement, the
Prospectus and the applicable Prospectus Supplement, and (iv) such
series of Trust
Senior Housing Properties Trust
May 7, 2001
Page 6
Preferred Securities have been duly authorized and are validly issued
by the applicable Capital Trust.
All of the opinions set forth herein are rendered as of the date
hereof, and we assume no obligation to update such opinions to reflect any facts
or circumstances which may hereafter come to our attention or any changes in the
law which may hereafter occur.
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
Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP