Attached files
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8-K - FORM 8-K - HEALTHCARE REALTY TRUST INC | g26247e8vk.htm |
EX-5.1 - EX-5.1 - HEALTHCARE REALTY TRUST INC | g26247exv5w1.htm |
Exhibit 8.1
February 24, 2011
Healthcare Realty Trust Incorporated
3310 West End Avenue
Nashville, TN 37203
3310 West End Avenue
Nashville, TN 37203
Re: | Issuance and sale of up to 2,383,322 shares of common stock of Healthcare Realty Trust Incorporated |
Ladies and Gentlemen:
We have acted as special tax counsel to Healthcare Realty Trust Incorporated, a Maryland
corporation (the Company), in connection with the
proposed offering and sale of up to 2,383,322
shares of common stock, par value $0.01 per share, of the Company pursuant to that certain
Controlled Equity Offering Sales Agreement dated January 11, 2011, by and between the Company and
Cantor Fitzgerald & Co. and that certain Sales Agreement dated January 11, 2011, by and between the
Company and Credit Agricole Securities (USA) Inc. (together, the Offering). The Offering is
described more fully in the prospectus supplement, as filed by the Company on February 24, 2011
(the Prospectus Supplement) and the accompanying prospectus dated February 18, 2011 (together
with the Prospectus Supplement, the Prospectus) that form part of the Companys effective
registration statement on Form S-3 (Reg. No. 333-172368) (the Registration Statement). In
connection with the Offering, you have requested the opinions set forth below.
The opinions set forth in this letter are based on relevant current provisions of the Internal
Revenue Code of 1986, as amended (the Code), Treasury Regulations thereunder (including proposed
and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court
decisions, applicable legislative history, and the administrative rulings and practices of the
Internal Revenue Service (the IRS), including its practices and policies in issuing private
letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives
such a ruling, all as of the date hereof. These provisions and interpretations are subject to
change, which may or may not be retroactive in effect, and which might result in material
modifications of our opinions. Our opinions do not foreclose the possibility of a contrary
determination by the IRS or a court of competent jurisdiction, or of a contrary position taken by
the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard,
an opinion of counsel with respect to an issue represents counsels best professional judgment with
respect to the outcome on the merits with respect to such issue, if such issue were to be
litigated, but an opinion is not binding on the IRS or the courts, and is not a guarantee that the
IRS will not assert a contrary position with respect to such issue or that a court will not sustain
such a position asserted by the IRS.
In rendering the opinions expressed herein, we have examined and relied on the following
documents:
1. Schedules prepared and delivered by officials of the Company setting forth:
(a) Real estate investment trust (REIT) taxable and gross income for the taxable year ended
December 31, 2010, together with a schedule of actual dividends distributed in accordance with Code
Section 858 and compliance with the distribution requirements of Code Section 857(a); and
(b) Compliance with the applicable REIT ratios or tests for the taxable year ended December
31, 2010 (and the asset tests for the quarters ended March 31, 2010, June 30, 2010, September 30,
2010 and December 31, 2010), including:
Income tests:
(1) | 95% gross income test for the year; and | ||
(2) | 75% gross income test for the year. |
Asset tests:
(1) | 75% asset test at the end of each quarter; | ||
(2) | 25% asset test at the end of each quarter; | ||
(3) | 10% asset test at the end of each quarter; and | ||
(4) | 5% asset test at the end of each quarter. |
2. Schedules prepared and delivered by officials of the Company setting forth for all taxable
years of the Company from and including the first year with respect to which the Company elected
REIT status through the taxable year ended December 31, 2009, the information described in
paragraph 1 above and including, for taxable years ended on or prior to December 31, 1997, the 30%
gross income test.
3. The Companys certificate, dated February 24, 2011 (the Certificate).
4. The factual statements contained in the Registration Statement (including the Prospectus).
In addition, we have examined such additional records, documents, certificates and other
instruments and made such investigations of fact and law as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. Any material variation or
difference in the facts from those set forth in the documents that we have reviewed and upon which
we have relied (including, in particular, the Certificate) may adversely affect the conclusions
stated herein.
In our examination of the foregoing documents, we have assumed, with your consent, that (i)
all of the representations and statements set forth in the documents (including, without
limitation, the Certificate) we reviewed are true and correct, and all of the obligations imposed
by any such documents on the parties thereto have been and will be performed or satisfied in
accordance with their terms; (ii) the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the conformity to
originals of documents submitted to us as copies, and the authenticity of the originals from which
any copies were made; (iii) the Company at all times will operate in accordance with its past and
proposed method of operation as described in its filings with the Securities and Exchange
Commission (the Commission) under the Securities Act of 1933 and the Securities Exchange Act of
1934, as amended and as described in the Certificate; (iv) the Company is a validly organized and
duly incorporated corporation under the laws of the State of Maryland; and (v) any Excess Shares
(defined in the Companys Second Articles of Amendment and Restatement to be shares of a value
exceeding 9.9% in value of the outstanding shares of the Company) held or deemed held by any person
(pursuant to applicable rules of attribution) are deemed to have no value or voting rights.
Based upon, subject to, and limited by the assumptions and qualifications set forth herein, we
are of the opinion that commencing with the Companys taxable year ended December 31, 1993 and
through the Companys taxable year ended December 31, 2010, the Company has been organized and
operated in conformity with the requirements for qualification and taxation as a REIT under the
Code, and its current organization and method of operation as described in the Registration
Statement (including the Prospectus) and the Certificate has enabled it, and its proposed method of
operation will continue to enable it, to meet the requirements for qualification and taxation as a
REIT under the Code for its taxable year ending December 31, 2011 and subsequent taxable years.
We also hereby confirm the statements made under the caption Federal Income Tax
Considerations in the Prospectus, and under Item 1 of the Companys Annual Report on Form 10-K for
the fiscal year ended December 31, 2010, incorporated by reference therein, under the captions
Federal Income Tax Information and ERISA Considerations, insofar as they purport to summarize
certain provisions of the statutes or regulations referred to therein, are accurate summaries in
all material respects.
The opinions set forth above represent our conclusions based upon the documents, facts,
representations and assumptions referred to above. Any material amendments to such documents,
changes in any significant facts or inaccuracy of such representations or assumptions could affect
the opinions referred to herein. Moreover, the Companys qualification and taxation as a REIT
under the Code depends upon the ability of the Company to meet for each taxable year, through
actual annual operating results, requirements under the Code regarding gross income, assets,
distributions and diversity of stock ownership. We have not undertaken, and will not undertake, to
review the Companys compliance with these requirements on a continuing basis. Accordingly, no
assurance can be given that the actual results of the Companys operations, the sources of its
income, the nature of its assets, the level of its distributions to shareholders and the diversity
of its share ownership for any given taxable year will satisfy the requirements under the Code for
qualification and taxation as a REIT. Although we have made such inquiries and performed such
investigations as we have deemed necessary to fulfill our professional responsibilities as special
tax counsel and nothing has come to our attention which calls into question the accuracy of the
facts
referred to herein or the representations set forth in the Certificate, we have not undertaken
an independent investigation of all of the facts referred to in this opinion letter or the
Certificate.
This opinion letter addresses only the specific federal income tax matters set forth above and
does not address any other federal, state, local or foreign tax issues. This opinion letter has
been prepared for your use in connection with the Offering, and speaks as of the date hereof. This
opinion letter may not be relied upon by any person other than you or for any other purpose without
our prior written consent. We assume no obligation by reason of this opinion letter to advise you
of any changes in our opinions subsequent to the delivery of this opinion letter but agree to do so
from time to time upon specific request from you for an update or confirmation.
We hereby consent to the filing of this opinion letter with the Commission as an exhibit to
the Companys Current Report on Form 8-K, and to the reference to our firm under the heading Legal
Matters in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Commission thereunder.
Very truly yours, |
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/s/ Waller Lansden Dortch & Davis, LLP | ||||