Attached files
file | filename |
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8-K - FORM 8-K - WELLTOWER INC. | l39122e8vk.htm |
EX-5 - EX-5 - WELLTOWER INC. | l39122exv5.htm |
EX-4.1 - EX-4.1 - WELLTOWER INC. | l39122exv4w1.htm |
EX-1.1 - EX-1.1 - WELLTOWER INC. | l39122exv1w1.htm |
EX-4.2 - EX-4.2 - WELLTOWER INC. | l39122exv4w2.htm |
EXHIBIT 8
March 15, 2010
Health Care REIT, Inc.
One SeaGate
Suite 1500
Toledo, Ohio 43604
One SeaGate
Suite 1500
Toledo, Ohio 43604
Ladies and Gentlemen:
We have acted as special tax counsel to Health Care REIT, Inc., a Delaware corporation (the
Company), in connection with the issuance and sale of $342,394,000 principal amount of 3.0%
Convertible Senior Notes due 2029 (the Notes), pursuant to a prospectus supplement dated March
10, 2010 (Prospectus Supplement) to the prospectus dated May 7, 2009 (collectively, the
Prospectus) included in the Companys Registration Statement on Form S-3 (File No. 333-159040)
(the Registration Statement), filed with the Securities and Exchange Commission (the SEC) under
the Securities Act of 1933, as amended. You have requested our opinion regarding certain U.S.
federal income tax matters. This opinion is furnished to you pursuant to Section 6 of the
Underwriting Agreement dated March 10, 2010 between the Company and UBS Securities LLC and J.P.
Morgan Securities Inc., as representatives of the several Underwriters named therein (the
Underwriters) (the Underwriting Agreement), in connection with the fulfillment of one of the
conditions precedent to the obligations of the Underwriters to purchase and pay for the Notes being
sold. Certain capitalized terms used herein without definition are as defined in the Underwriting
Agreement.
In giving this opinion, we have examined the following:
§ | the Second Restated Certificate of Incorporation, as amended, of the Company; | ||
§ | the Second Amended and Restated By-Laws of the Company; | ||
§ | the Companys Annual Report on Form 10-K for the year ended December 31, 2009; |
Health Care REIT, Inc.
March 15, 2010
Page 2
March 15, 2010
Page 2
§ | the Registration Statement, the General Disclosure Package and the Prospectus; | ||
§ | the Companys 2008 federal income tax return; and | ||
§ | such other documents as we have deemed necessary or appropriate for purposes of this opinion. |
In connection with the opinions rendered below, we have assumed with your consent that:
1. Each of the documents referred to above has been duly authorized, executed and delivered;
is authentic, if an original, or is accurate, if a copy; and has not been amended;
2. During its taxable years ended December 31, 2003 through December 31, 2009, the Company has
operated, and, in future taxable years, the Company will operate, in a manner that has caused or
will make, as the case may be, the factual representations relating to the ownership, operation,
future method of operations, and compliance of the Company with the real estate investment trust
(REIT) provisions of the Internal Revenue Code of 1986, as amended (the Code), and the Treasury
Regulations (the Regulations) thereunder, as in effect as of the date hereof, contained in a
certificate dated on or about the date hereof, and executed by a duly appointed officer of the
Company (the Officers Certificate), true for such years;
3. The Company will not make any amendments to its organizational documents after the date of
this opinion that would affect its qualification as a REIT under sections 856-860 of the Code for
any taxable year; and
4. No action will be taken by the Company after the date hereof that would have the effect of
altering the facts upon which the opinions set forth below are based.
In our capacity as special tax counsel to the Company, we have made such legal and factual
examinations and inquiries as we have deemed necessary or appropriate for purposes of our opinions
rendered below. For the purposes of rendering these opinions, we have not made an independent
investigation of the facts set forth in any documents delivered to us, including, without
limitation, the Officers Certificate. We have relied completely upon the Companys
representations that the information presented in such documents accurately reflects all material
facts. In the course of our representation of the
Health Care REIT, Inc.
March 15, 2010
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March 15, 2010
Page 3
Company, we have not been made aware of any
facts inconsistent with such factual representations. In addition, where such factual
representations involve terms defined or used in the Code, the Regulations, published rulings of
the Internal Revenue Service (the Service) or other relevant authority, we have explained such
terms to the Companys representatives and are satisfied that the Companys representatives
understand such terms and are capable of making such factual representations.
Based on the Code, Regulations, documents, assumptions and statements set forth above, the
factual representations set forth in the Officers Certificate and our review of the discussions in
the Registration Statement, the General Disclosure Package and the Prospectus under the captions
Certain Federal Income Tax Considerations and U.S. Federal Income Tax Considerations and in the
Companys Annual Report on Form 10-K for the year ended December 31, 2009 under the caption
Taxation, we are of the opinion that:
(a) the Company qualified to be taxed as a REIT pursuant to sections
856 through 860 of the Code for its taxable years ended December 31, 2003
through December 31, 2009, and the Companys organization and current and
proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code for all
future taxable years; and
(b) the descriptions of the law and the legal conclusions contained in
the Registration Statement, the General Disclosure
Package and the Prospectus under the captions Certain Federal Income
Tax Considerations and U.S. Federal Income Tax Considerations and in the
Companys Annual Report on Form 10-K for the year ended December 31, 2009
under the caption Taxation are correct and accurate in all material
respects and present fairly and accurately the material aspects of the
federal income tax treatment of the Company and of its stockholders.
We will not review on a continuing basis the Companys compliance with the documents or
assumptions set forth above, or the factual representations set forth in the Officers Certificate.
Accordingly, no assurance can be given that the actual results of the Companys operations for any
given taxable year will satisfy the requirements for qualification and taxation as a REIT.
Health Care REIT, Inc.
March 15, 2010
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March 15, 2010
Page 4
The foregoing opinions are based on current provisions of the Code and the Regulations,
published administrative interpretations thereof and published court decisions and assume that none
of these will change. No assurance, however, can be given that the law will not change in a way
that will prevent the Company from qualifying as a REIT.
The foregoing opinions are limited to the U.S. federal income tax matters addressed herein,
and no other opinions are rendered with respect to other federal tax matters or to any issues
arising under the tax laws of any other country, or any state or locality. You must judge for
yourselves whether the matters addressed in this opinion letter are sufficient for your purposes.
This letter speaks only of this date, and we undertake no obligation to update the opinions
expressed herein after the date of this letter. This opinion letter may not be distributed,
or quoted in whole or in part, or otherwise reproduced in any document, or filed with any
governmental agency, in each case without our express written consent.
We hereby consent to the filing of this opinion as an exhibit to Form 8-K to be filed with the
Securities and Exchange Commission on or about the date hereof. In
giving this consent, we do not acknowledge that we are in the category of persons whose
consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations promulgated thereunder by the Securities and Exchange Commission.
Very truly yours, | ||||
/s/ Arnold & Porter LLP
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Arnold & Porter llp |