Attached files
file | filename |
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8-K - FORM 8-K - WELLTOWER INC. | l42157e8vk.htm |
EX-5 - EX-5 - WELLTOWER INC. | l42157exv5.htm |
EX-1.1 - EX-1.1 - WELLTOWER INC. | l42157exv1w1.htm |
EX-4.2 - EX-4.2 - WELLTOWER INC. | l42157exv4w2.htm |
EXHIBIT 8
March 14, 2011
Health Care REIT, Inc.
4500 Dorr Street
Toledo, Ohio 43615
4500 Dorr Street
Toledo, Ohio 43615
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 $400 million aggregate principal amount of
its 3.625% notes due 2016, $600 million aggregate principal amount of its 5.250% notes due 2022 and
$400 million aggregate principal amount of its 6.500% notes due 2041 (collectively, the Notes),
pursuant to a prospectus supplement dated March 9, 2011 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 on May 7, 2009 with the Securities and
Exchange Commission 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 9, 2011, between the Company and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, UBS Securities LLC,
Barclays Capital Inc., Deutsche Bank Securities Inc., and Wells Fargo Securities, LLC as
Representatives of the Several Underwriters (collectively, not including the Company, the
Underwriters) (the 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 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, 2010; |
Health Care REIT, Inc.
March 14, 2011
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March 14, 2011
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| the Registration Statement, the General Disclosure Package and the Prospectus; | ||
| the Companys 2009 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, 2010, 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 14, 2011
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March 14, 2011
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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 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 discussion in
the Companys Annual Report on Form 10-K for the year ended December 31, 2010 under the caption
Taxation, and any amendments thereto, and the discussion under the caption Additional U.S.
federal income tax considerations in the Prospectus (and any similar sections or information
contained in the General Disclosure Package), we are of the opinion that:
(a) the Company is 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, 2010, 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 statements contained under the heading Taxation in the
Companys Annual Report on Form 10-K for the year ended December 31, 2010,
and any amendments thereto, and the statements contained under the heading
Additional U.S. federal income tax considerations in the Prospectus (and
any similar sections or information contained in the General Disclosure
Package), are correct and accurate in all material respects and
present fairly and accurately the material aspects of the federal income
tax (i) treatment of the Company and (ii) considerations that are likely
to be material to a holder of the Notes.
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
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March 14, 2011
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the Companys operations for any
given taxable year will satisfy the requirements for qualification and taxation as a REIT.
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, |
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/s/ Arnold & Porter LLP | ||||
Arnold & Porter llp | ||||