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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 12, 1996
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NATIONWIDE HEALTH PROPERTIES, INC.
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(Exact name of registrant as specified in charter)
Maryland 1-9028 95-3997619
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(State or other (Commission (IRS employer
jurisdiction of file number) identification
incorporation) number)
4675 MacArthur Court, Suite 1170, Newport Beach, CA 92660-6429
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(Address of principal executive offices)
Registrant's telephone number, including area code:
(714) 251-1211
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Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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1.1 Underwriting Agreement, dated June 12, 1996, among the Registrant and
each of the several Underwriters named in Schedule I to such
Underwriting Agreement.
8.1 Opinion of O'Melveny & Myers re tax matters.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONWIDE HEALTH PROPERTIES, INC.
Date: June 18, 1996 By: /s/ MARK L. DESMOND
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Name: Mark L. Desmond
Title: Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
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Exhibit
No. Description
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1.1 Underwriting Agreement, dated June 12, 1996, among the Registrant
and each of the several Underwriters named in Schedule I to such
Underwriting Agreement.
8.1 Opinion of O'Melveny & Myers re tax matters.
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EXHIBIT 1.1
NATIONWIDE HEALTH PROPERTIES, INC.
2,650,000 Shares of Common Stock
UNDERWRITING AGREEMENT
New York, New York
June 12, 1996
NATWEST SECURITIES LIMITED
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
EVEREN SECURITIES
as Representatives of the
several Underwriters
c/o NatWest Securities Limited
135 Bishopsgate
London EC2M 3XT
England
Dear Sirs:
Nationwide Health Properties, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), 2,650,000 shares (the "Firm Securities") of the Company's
Common Stock, $.10 par value per share (the "Common Stock"). The Company has
agreed to grant to you and the other Underwriters an option (the "Option") to
purchase up to an additional 397,500 shares of Common Stock. Any and all shares
of Common Stock to be issued and sold pursuant to such Option are referred to
herein as the "Option Securities," and the Firm Securities and any Option
Securities are collectively referred to herein as the "Securities." Such
Securities are to be sold to each Underwriter, acting severally and not jointly,
in such amounts as are listed in Schedule I opposite the name of each
Underwriter. If the firm or firms listed in Schedule I hereto include only the
firm or firms to which this Agreement is addressed above, then the terms
"Underwriters" and "Representatives" as used herein each shall be deemed to
refer to such firm or firms.
1. Representations and Warranties.
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(a) The Company represents and warrants to, and agrees with, each
Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and
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Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has filed a registration statement on such Form
(Registration No. 33-64798) which has become effective, for the
registration of Common Stock, warrants, unsecured senior debt securities,
and Preferred Stock, $1.00 par value per share, under the Act and the Rules
and Regulations. Such registration statement, as declared effective and
each amendment thereto declared effective through the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) of the Rules
and Regulations and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule 424 of
the Rules and Regulations a supplement to the form of prospectus included
in such registration statement relating to the Securities and the plan of
distribution of the Securities and has previously advised you of all
further information (financial and other) with respect to the Company to be
set forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule 424 (including the
Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, and the Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(ii) As of each of the following dates or times: (1) the date
hereof, (2) when the Final Prospectus is first filed pursuant to Rule 424
of the Rules and Regulations, (3) when, prior to the Firm Closing Date (as
hereinafter defined) or any Option Closing Date (as hereinafter defined),
as the case may be, the Registration Statement or any
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amendment to the Registration Statement becomes effective (including the
filing of any document incorporated by reference in the Registration
Statement), (4) when any supplement to the Final Prospectus is filed with
the Commission, (5) at the Firm Closing Date, and (6) at any Option Closing
Date, (i) the Registration Statement as amended as of any such time, and
the Final Prospectus or any Preliminary Final Prospectus, as amended or
supplemented as of any such time, will comply in all material respects with
the applicable requirements of the Act, the Rules and Regulations, the
Exchange Act and the rules and regulations under the Exchange Act, (ii) the
Registration Statement, as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Final Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information relating to any Underwriter
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus.
(iii) The consolidated financial statements and schedules of the
Company and its Subsidiaries (as defined herein) incorporated by reference
into the Registration Statement and the Final Prospectus or any Preliminary
Final Prospectus fairly present the financial condition, results of
operations, stockholders' equity and cash flows of the Company and its
Subsidiaries as of the dates and periods therein specified. Such financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved. The selected financial data set forth in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995 and the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1996 fairly present, on the basis stated in such reports, the
information included therein.
(iv) The Company has an authorized capitalization as set forth in the
Preliminary Final Prospectus. All of the issued shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid
and nonassessable. The Securities have been duly authorized and,
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when issued and delivered against payment therefor as provided in this
Agreement, will be validly issued, fully paid and nonassessable, and will
not be subject to any preemptive or other similar right. No person or
entity is entitled to have any securities registered under the Registration
Statement. The shares of capital stock of the Company conform to the
description thereof in the Basic Prospectus.
(v) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or hereafter in effect,
and to equitable principles that may limit the right to specific
enforcement of remedies, and except insofar as the enforceability of the
indemnity and contribution provisions contained in this Agreement may be
limited by federal or state securities laws and the public policy
underlying such laws).
(vi) The Securities have been approved for listing on the New York
Stock Exchange, subject only to notice of issuance, and the Company knows
of no reason or set of facts which is likely to adversely affect such
approval.
(vii) The Company is organized in conformity with the requirements
for qualification and as of the date hereof operates, and as of the Firm
Closing Date and any Option Closing Date will operate, in a manner that
qualifies the Company as a "real estate investment trust" (a "REIT") under
the Internal Revenue Code of 1986, as amended (the "Code"), and the rules
and regulations thereunder, and will continue to operate in such a manner
after consummation of the transactions contemplated by the Final Prospectus
and any Preliminary Final Prospectus.
(viii) The Company is a Maryland corporation in good standing under
the laws of the State of Maryland. Except for Nationwide Health Properties
Finance Corporation, a Delaware corporation ("NHP Properties"), and MLD
Texas Trust, a Texas business trust ("MLD"), the Company has no
Subsidiaries. For purposes of this Agreement, the term "Subsidiaries"
means any and all persons or entities which, at any given time, would be
required to be identified as a significant subsidiary of the Company in
response to Item 14 of Form 10-K of the Commission, regardless of whether
the Company is required to file an annual report on Form 10-K at such time.
Each of the Subsidiaries has been duly organized and is validly existing
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in good standing under the laws of its jurisdiction of organization; and
each of the Company and its Subsidiaries is duly qualified to transact
business as a foreign organization and is in good standing under the laws
of all other jurisdictions where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where
the failure to be so qualified would not result in a material liability or
disability to the Company and its Subsidiaries, taken as a whole.
(ix) The Company and each of its Subsidiaries have full power
(corporate and other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Final Prospectus; the shares of capital stock owned by
the Company which have been issued by the Company's Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable and
are owned beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims.
(x) No legal or governmental proceedings are pending to which the
Company or any of its Subsidiaries is a party or to which the property of
the Company or any of its Subsidiaries is subject that are required to be
described in the Registration Statement or the Final Prospectus or any
Preliminary Final Prospectus and are not described therein and no such
proceedings have been threatened against the Company or any of its
Subsidiaries or with respect to any of their respective properties; and no
contract or other document is required to be described in the Registration
Statement or the Final Prospectus or any Preliminary Final Prospectus or to
be filed as an exhibit to the Registration Statement that is not described
therein or filed as required.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus or any Preliminary
Final Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the Company and its Subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries, taken as a
whole.
(xii) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, do not (i) require
the consent, approval, authorization, registration or qualification of or
with any governmental authority, except such as have been obtained and
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such as may be required under state securities or blue sky laws or (ii)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, lease or other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of their respective properties
are bound, or the charter documents or by-laws of the Company or any of its
Subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its Subsidiaries.
(xiii) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiv) Neither the Company nor, to its knowledge, any of its
directors, officers or controlling persons has taken, directly or
indirectly, any action intended, or which might reasonably be expected, to
cause or result in, under the Act or otherwise, or which has constituted,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(xv) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of their respective properties is
bound or may be affected in any material adverse respect with regard to
property, business or operations of the Company and its Subsidiaries which
would require disclosure in the Registration Statement and the Final
Prospectus or any Preliminary Final Prospectus.
(b) NatWest Securities Limited ("NatWest") represents and agrees that
(i) it has not offered or sold and will not offer or sell in the United Kingdom
by means of any document, any Common Stock except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, (ii) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything done by
it in relation to the Common Stock in, from or otherwise involving the United
Kingdom, and (iii) it has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Common Stock to a person who is of a kind described in Article
11(3) of the Financial Services
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Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to issue and
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company at a purchase price of $20.0687 per share,
the number of Firm Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) The Company grants the option to the several Underwriters to
purchase, severally and not jointly, the Option Securities from the Company.
The Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to any exercise of such option. The purchase price to be paid
for any Option Securities shall be the same price per share as for the Firm
Securities set forth above in subparagraph (a) of this Section 2. Such option
may be exercised only to cover over-allotments in the sale of the Firm
Securities by the Underwriters and may be exercised in whole or in part at any
time (but not more than once) on or before the 30th day after the date of this
Agreement, upon notice (the "Option Securities Notice") in writing or by
telephone (confirmed in writing) by the Representatives to the Company no later
than 5:00 p.m., New York City time, at least two and no more than seven business
days before the date specified for closing in the Option Securities Notice (the
"Option Closing Date") setting forth the aggregate number of Option Securities
to be purchased and the time and date for such purchase. On the Option Closing
Date, the Company will issue and sell to the Underwriters the number of Option
Securities set forth in the Option Securities Notice and, subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, each Underwriter will purchase such percentage of the Option
Securities as is equal to the percentage of Firm Securities that such
Underwriter is purchasing, as adjusted by the Representatives in such manner as
they deem advisable to avoid fractional shares.
3. Delivery and Payment. Delivery of and payment for the Firm Securities
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shall be made at the office of O'Melveny & Myers, counsel to the Company, 610
Newport Center Drive, Suite 1700, Newport Beach, California, at 7:00 a.m.,
California time, on June 18, 1996, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "Firm Closing Date"). Delivery of the Firm Securities
shall be made to the Representatives at the office of Stroock & Stroock &
Lavan, counsel to the Underwriters, Seven Hanover Square, New York, New York,
for the
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respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price by certified or
official bank checks payable in Clearing House (next-day) funds to the order of
the Company.
To the extent the Option is exercised, delivery of the Option Securities
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Firm Closing Date at the time and
date (which may be the Firm Closing Date) specified in the Option Securities
Notice.
Certificates evidencing the Securities shall be in definitive form,
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Firm Closing
Date or the Option Closing Date, as the case may be.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 p.m. on the business day prior to the Firm Closing Date or the Option
Closing Date, as the case may be.
4. Agreements. The Company covenants and agrees with the several
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Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be mailed to the Commission for filing
pursuant to Rule 424 by first class certified or registered mail and will
cause the Final Prospectus to be filed with the Commission pursuant to said
Rule. During any time when a prospectus relating to the Securities is
required to be delivered under the Act, the Company will comply with all
requirements imposed upon it by the Act and the Exchange Act and the
respective rules and regulations promulgated by the Commission thereunder
to the extent necessary to permit the continuance of sales of or dealings
in the Securities in accordance with the provisions hereof and of the Final
Prospectus or any Preliminary Final Prospectus, provided, that the
Underwriters shall be obligated for any expenses thereof after nine months
from the date hereof. The Company will advise the Representatives promptly
(i) when the Final Prospectus shall have been mailed to the Commission for
filing pursuant to Rule 424, (ii) when any amendment to the Registration
Statement relating to the Securities shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration
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Statement or amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening (provided the Company has actual knowledge of
any such threat) of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening (provided the Company has actual knowledge of any
such threat) of any proceeding for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act or the Rules and Regulations, any
event occurs as a result of which the Final Prospectus or any Preliminary
Final Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act, the Rules and
Regulations, the Exchange Act or the rules and regulations of the Exchange
Act, the Company promptly will prepare and file with the Commission,
subject to the first sentence of subparagraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 60
days after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the Rules and
Regulations) covering a twelve month period beginning not later than the
first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Firm Closing Date or any Option Closing Date,
as the case may be, and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act or the Rules and
Regulations, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
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(e) The Company will use its reasonable efforts to arrange for the
qualification of the Securities for offer and sale under the laws of such
jurisdictions as the Representatives may reasonably designate and will
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is not
now so subject.
(f) The Company and its executive officers will not, directly or
indirectly, without the prior written consent of NatWest, offer, sell,
distribute or otherwise dispose (or announce any offer, sale, grant or any
option to purchase or other disposition) of any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for, or any
rights to purchase or acquire, Common Stock, for a period of 90 days after
the date hereof except pursuant to (i) any existing employee benefit plan
which has been approved by shareholders, (ii) the Company's 6 1/4%
Convertible Debentures due 1999, or (iii) this Agreement.
5. Conditions to the Obligations of the Underwriters. The obligations of
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the several Underwriters to purchase and pay for the Firm Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Firm Closing Date (including the filing of any document incorporated by
reference therein) and as of the Firm Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of O'Melveny & Myers, counsel for the Company, or, with respect to
matters of Delaware law, the opinion of Richards, Layton & Finger, special
counsel to the Company, dated the Firm Closing Date, to the effect of
subparagraphs (i) through (xi) below:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of
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the State of Maryland, has the corporate power and corporate authority
to own its properties and conduct its business as described in the
Prospectus and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not result in a material liability or
disability to the Company and its subsidiaries, taken as a whole;
(ii) NHP Properties has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware,
has the corporate power and corporate authority to own its properties
and conduct its business and is duly qualified to transact business as
a foreign corporation and is in good standing under the laws of all
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not result in a material liability or
disability to the Company and its subsidiaries, taken as a whole. All
the outstanding shares of capital stock of NHP Properties have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, to the best of such counsel's knowledge, all
outstanding shares of capital stock of NHP Properties are owned,
directly or indirectly, by the Company free and clear of any perfected
security interest;
(iii) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iv) the authorization for the listing of the Securities on the
New York Stock Exchange has been given, subject to notice of issuance
and evidence of satisfactory distribution;
(v) to the best knowledge of such counsel, (a) there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company, NHP Properties or MLD of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Final Prospectus, and (b) there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit, which is
not described or filed as required;
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(vi) the Registration Statement has been declared effective
under the Act; to the actual knowledge of such counsel (based on
telephonic confirmation with the Commission staff), no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted by the
Commission or, to the actual knowledge of such counsel (based on
telephonic confirmation with the Commission staff) threatened by the
Commission; the Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which we express
no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the rules and regulations of the
Commission promulgated thereunder, the Exchange Act and the rules and
regulations of the Commission promulgated under the Exchange Act;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any
California, New York, Maryland or federal court or governmental agency
or body is required for the execution and delivery of this Agreement
or the issuance and sale of the Securities by the Company under this
Agreement, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(ix) Neither the issuance nor the sale of the Securities will
conflict with, result in a breach of, or constitute a default under
the Amended and Restated Articles of Incorporation or Bylaws, as
amended and restated, of the Company, or, to the best knowledge of
such counsel, the terms of any indenture or other material agreement
or instrument known to such counsel and to which the Company, NHP
Properties or MLD is a party or by which the Company, NHP Properties
or MLD may be bound, or any order or regulation known to such counsel
to be applicable to the Company, NHP Properties or MLD of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company, NHP Properties or
MLD;
(x) The Company has an authorized capitalization as set forth in
the Final Prospectus; the Securities have been duly and validly
authorized and, when issued
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and delivered against payment therefor as provided for in this
Agreement, will be validly issued, fully paid and nonassessable and
free of statutory preemptive rights;
(xi) such opinion regarding the qualification of the Company
under the Code and applicable regulations as a REIT as shall be
reasonably acceptable to the Representatives.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the State of California, the State of Delaware, the State of
Maryland or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed
to be reliable and who are reasonably satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and its Subsidiaries
and public officials.
(c) The Representatives shall have received from Stroock & Stroock &
Lavan, counsel for the Underwriters, such opinion or opinions, dated the
Firm Closing Date, with respect to the issuance and sale of the Securities,
the Registration Statement, the Final Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chief Executive Officer and
President or a Vice President and the principal financial or accounting
officer of the Company, dated the Firm Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company contained
in Section 1 of this Agreement are true and correct in all material
respects on and as of the Firm Closing Date with the same effect as if
made on the Firm Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no
13
<PAGE>
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus.
(iv) each of BIP Sub I, a Delaware corporation, NHP Tucson
Health Care Associates Limited Partnership, a Delaware limited
partnership, Nationwide Health Properties - Kansas, Inc., a Kansas
corporation, and MLD Financial Capital Corporation, a Delaware
corporation, is not a "significant subsidiary" as that term is defined
in Rule 1-02(w) of Regulation S-X of the Commission.
(e) At the Firm Closing Date, Arthur Andersen LLP ("AA") shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Firm Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Rules and Regulations, and with respect to
the financial and other statistical and numerical information contained in
the Registration Statement. In addition, at the time this Agreement is
executed, AA shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
subparagraph (e).
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been any material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus.
(g) Prior to the Firm Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in
14
<PAGE>
their discretion, to each of the foregoing conditions to purchase the Firm
Securities, except that all references to the Firm Securities and the Firm
Closing Date shall be deemed to refer to such Option Securities and the related
Option Closing Date, respectively.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date or, with respect to any Option Securities, the Option
Closing Date, by the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
6. Expenses. The Company will pay all costs and expenses incident to the
--------
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 9 hereof, including, without limitation, all costs and
expenses incident to (i) the printing or other production of all documents with
respect to the transactions, including any costs of printing the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus and the Final
Prospectus and any amendment or supplement thereto, this Agreement and any blue
sky memoranda, (ii) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, (vi) the filing
fees of the Commission and the National Association of Securities Dealers, Inc.
relating to the Securities, (vii) the listing of the Securities on the New York
Stock Exchange and (viii) meetings with prospective investors in the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters). If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that
15
<PAGE>
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
7. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the registration statement originally filed with
respect to the Securities or any amendment thereto, the Prospectus or any
amendment or supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Securities under the securities or blue sky laws thereof
or filed with the Commission or any securities association or securities
exchange (each an "Application") or (iii) the omission or alleged omission to
state in such registration statement or any amendment thereto, the Prospectus or
any amendment or supplement thereto, or any Application a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse, as incurred, each such indemnified party for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented), unless such
failure
16
<PAGE>
was the result of noncompliance by the Company with Section 4(b) hereof, and
(iii) such indemnity shall not cover any such loss, claim, damage or liability
which is held in a final judgment of a court to have arisen out of the gross
negligence or willful misconduct of any Underwriter. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity in subsections (i) and (ii) from the Company
to each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that for all purposes of this Agreement the statements set
forth in the last paragraph of the cover page and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final Prospectus or
the Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity, and the Underwriters confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of
17
<PAGE>
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of the indemnifying party, unless
such indemnified party waived its rights under this Section 7 in which case the
indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties shall be determined by reference to, among other
things, whether
18
<PAGE>
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters, the parties' relative intents, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Company and the Underwriters agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total underwriting discounts received by it with respect to the Securities
purchased by such Underwriter under this Agreement, less the aggregate amount of
any damages that such Underwriter has otherwise been required to pay in respect
of the same or any substantially similar claim, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
hereunder are several in proportion to their respective underwriting obligations
and not joint, and contributions among Underwriters shall be governed by the
provisions of the Agreement Among Underwriters. For purposes of this paragraph
(d), each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Company.
8. Default of Underwriters. If one or more Underwriters default in their
-----------------------
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
19
<PAGE>
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 9 hereof. In the event of any default by one or more Underwriters as
described in this Section 8, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
for not more than seven business days in order that any necessary changes may be
made in the arrangements or documents for the purchase and delivery of the Firm
Securities or Option Securities, as the case may be. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 8. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
9. Termination. This Agreement may be terminated with respect to the
-----------
Firm Securities or any Option Securities in the sole judgment of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Firm Securities or any Option Securities, or if prior to such time (i)
trading in any of the equity securities of the Company shall have been suspended
by the Commission or by an exchange that lists the securities or the Common
Stock or trading in securities generally on the New York Stock Exchange or the
International Stock Exchange of the United Kingdom and the Republic of Ireland,
Limited shall have been suspended or limited or minimum or maximum prices shall
have been generally established on any such exchanges, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by any of such exchanges
or by order of the Commission or any court on other governmental authority, (ii)
a banking moratorium shall have been declared by New York, United Kingdom or
United States authorities or (iii) there shall have occurred any material
adverse change in the financial or securities markets in the United States or
the United Kingdom or any outbreak or material escalation of hostilities or
declaration by the United States or the United Kingdom of a national emergency
or war or other calamity or crisis, the effect of any which is such as to make
it, in the judgment of the Representatives, impracticable or inadvisable to
market the Securities on the terms and in the manner contemplated by the Final
Prospectus.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will
20
<PAGE>
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Section 6 and 7 hereof and
this Section 10 shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to any of the Underwriters, shall be
mailed, delivered or telecopied and confirmed in writing to NatWest Securities
Limited, 135 Bishopsgate, London EC2M 3XT, England, Attn: Mr. Melvyn Rowe, with
a copy to: Stroock & Stroock & Lavan, Seven Hanover Square, New York, New York
10004-2696, Attn: James R. Tanenbaum, Esq.; or, if sent to the Company, will be
mailed, delivered or telecopied and confirmed in writing to it at Nationwide
Health Properties, Inc., 4675 MacArthur Court, Suite 1170, Newport Beach,
California 92660, attention of the Company's Secretary, with a copy to:
O'Melveny & Myers, 610 Newport Center Drive, Suite 1700, Newport Beach,
California 92660-6429, Attn: Gary J. Singer, Esq.
12. Successors. This Agreement shall inure to the benefit of and shall be
----------
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 7 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act and (ii) the indemnities of the
Underwriters contained in Section 7 of this Agreement shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Act. No purchaser of Securities
from any Underwriter shall be deemed a successor because of such purchase.
13. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
14. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
NATIONWIDE HEALTH PROPERTIES, INC.
By: /s/ Mark L. Desmond
--------------------------------
Name: Mark L. Desmond
Title: Senior Vice President and
Chief Financial Officer
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above-mentioned.
NATWEST SECURITIES LIMITED
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
EVEREN SECURITIES
For themselves and the other
several Underwriters, if any,
named in Schedule I to the
foregoing Agreement
By: NATWEST SECURITIES LIMITED
By: /s/ Melvyn Rowe
--------------------------------
Name: Melvyn Rowe
Title: Director, Equity Capital Markets
For itself and the other Representatives
22
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Amount
of Securities to
Underwriters be Purchased
- ------------ ----------------
<S> <C>
NatWest Securities Limited...................................... 530,000
Alex. Brown & Sons Incorporated................................. 530,000
Dean Witter Reynolds Inc........................................ 530,000
A.G. Edwards & Sons, Inc........................................ 530,000
Everen Securities............................................... 530,000
----------------
Total........................................................... 2,650,000
================
</TABLE>
23
<PAGE>
EXHIBIT 8.1
June
18th
1 9 9 6
614,055-086
NB1-259868.V1
Nationwide Health Properties, Inc.
4675 MacArthur Court, Suite 1170
Newport Beach, California 92660
Re: Nationwide Health Properties, Inc. - Form S-3
Registration Statement
---------------------------------------------
Gentlemen:
In connection with the proposed offering of 3,047,500 shares of the
common stock (the "Common Stock") of Nationwide Health Properties, Inc., a
Maryland corporation (the "Company"), under the above Registration Statement,
you have requested our opinion whether the Company qualified as a real estate
investment trust (a "REIT") under sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), for its taxable year ended
December 31, 1995 and whether it will continue to so qualify if it operates
subsequent to March 31, 1996 in the same manner as it has prior to that date.
You have also asked our opinion whether the Company should be treated as the
owner of its properties listed in the schedule which you provided to us (the
"Properties") for federal income tax purposes and whether the leases with
respect to such Properties (the "Leases") should be treated as true leases, and
not financing arrangements, for such purposes.
<PAGE>
Page 2 - Nationwide Health Properties, Inc. - June 18, 1996
As of February 9, 1996, we delivered our opinion (the "2/9/96
Opinion") concerning the qualification of the Company as a REIT for its taxable
year ended December 31, 1995 and its continuing qualifications as a REIT if it
operated subsequent to December 31, 1995 in the same manner as it had prior to
that date. The 2/9/96 Opinion, and the certificates, documents and other
materials referred to therein, are hereby incorporated by reference. Since
February 9, 1996, there have been delivered to us certain certificates and
schedules prepared and executed by Company personnel, setting forth certain
factual representations regarding the Company and its assets and operations.
This opinion specifically relies on such documents, certificates and schedules
and assumes that the facts represented therein will not change in any material
way so long as the Company seeks to qualify as a REIT.
On the basis of the foregoing and subject to all of the
qualifications, conditions and factual assumptions set forth herein and in the
2/9/96 Opinion, we are of the opinion that for the calendar year 1995, the
Company met each of the requirements for qualification as a REIT, and if the
Company operates subsequent to March 31, 1996 in the same manner as it has prior
to such date, it will continue to so qualify, provided that the various tests
for qualification as a REIT relating to its income, assets, distributions,
ownership and certain administrative matters are satisfied in those years.
However, we are unable to opine whether the Company will actually continue to
qualify as a REIT because such qualification will depend on future transactions
and events which cannot be known at this time.
We also wish to advise you that on the basis of and in reliance on the
foregoing and on the facts set forth in the Prospectus, dated July 12, 1993, and
Prospectus Supplement dated June 12, 1996, relating to the Common Stock, it is
the opinion of O'Melveny & Myers LLP that under current law, including relevant
statutes, regulations, and judicial and administrative precedent (which law is
subject to change on a retroactive basis), a court, more likely than not, would
hold that the Company would be treated as the owner of the Properties for
federal income tax purposes and the Leases would be treated as true leases, and
not financing arrangements, for such purposes. You should be aware that this
opinion is not binding on the Internal Revenue Service and no assurance can be
given that the Internal Revenue Service may not successfully challenge the
conclusions set forth in this opinion. If the Internal Revenue Service
successfully challenged such conclusions, the Company would not be entitled to
claim depreciation with respect to the Properties and might be
<PAGE>
Page 3 - Nationwide Health Properties, Inc. - June 18, 1996
compelled to make deficiency dividends to satisfy the 95% dividend distribution
requirement or lose its REIT status.
Respectfully submitted,
/s/ O'Melveny & Myers LLP
