S-3ASR: Automatic shelf registration statement of securities of well-known seasoned issuers
Published on April 10, 2008
April 10,
2008
Omega
Healthcare Investors, Inc.
9690
Deereco Road
Suite
100
Timonium,
Maryland 21093
Re: Registration
Statement on Form S-3
Ladies
and Gentlemen:
We have acted as special counsel to
Omega Healthcare Investors, Inc., a Maryland corporation (the "Company"), in
connection with the Company's Registration Statement on Form S-3 (the
"Registration Statement") to be filed on the date hereof with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"). The Registration Statement relates to
the issuance and sale from time to time by the Company, pursuant to Rule 415 of
the General Rules and Regulations promulgated under the Securities Act, of the
following securities of the Company: (i) debt securities (the "Debt
Securities"); (ii) shares of preferred stock, $1.00 par value per share (the
"Preferred Stock"); (iii) shares of common stock, $0.10 par value per share (the
"Common Stock"); and (iv) warrants to purchase Debt Securities (the "Debt
Securities Warrants"), warrants to purchase Preferred Stock (the "Preferred
Stock Warrants") and warrants to purchase Common Stock (the "Common Stock
Warrants"). The Debt Securities Warrants, the Preferred Stock Warrants and the
Common Stock Warrants are referred to herein as the "Securities
Warrants." The Debt Securities, the Preferred Stock, the Common Stock
and the Securities Warrants are referred to herein as the
"Securities".
This opinion is being delivered in
accordance with the requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act.
In
connection with this opinion, we have examined and relied upon the Registration
Statement in the form proposed to be filed with the Commission and originals or
copies of such corporate records, documents, agreements or other instruments of
the Company, such certificates and records of public officials, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein. As to all matters of fact
(including factual conclusions and characterizations and descriptions of
purpose, intention or other state of mind) we have relied entirely upon
certificates of officers of the Company, and have assumed, without independent
inquiry, the accuracy of those certificates. We have assumed the genuineness of
all signatures, the conformity to the originals of all documents reviewed by us
as copies, the authenticity and completeness of all original documents reviewed
by us in original or copy form and the legal competence of each individual
executing any applicable document. In making our examination of
executed documents or documents to be executed, we have assumed that the parties
thereto, other than the Company, had or will have the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and the execution
and delivery by such parties of such documents, and the validity and legally
binding effect thereof on such parties.
For purposes of this opinion letter, we
have also assumed that:
(i) (a) the
issuance, sale, amount and terms of the Securities to be offered from time to
time will be duly authorized and established by proper action of the Board of
Directors of the Company, and in accordance with the Articles of Incorporation
of the Company, as amended from time to time (the "Articles"), the By-laws of
the Company, as amended from time to time (the "By-laws"), and applicable law;
and that, at the time of each such issuance and sale of Securities, the Company
will continue to be a validly existing corporation under the laws of the State
of Maryland with the requisite corporate power and authority to issue and sell
all such Securities at such time and will have received any required approvals
of any governmental authority or agency in connection therewith; and that the
issuance of Securities to be offered from time to time, and the issuance of
Preferred Stock and/or Common Stock upon conversion, exercise or exchange of any
such Securities, will not violate the provisions of the Articles, relating to
restrictions on beneficial ownership and transfer of shares of stock of the
Company, and (b) the terms of such Securities will have been established so as
not to, and the execution and delivery by the Company of, and the performance of
its obligations under, the Indenture (as defined below), any supplemental
indenture to be entered into in connection with the issuance of Debt Securities,
and any Warrant Agreement (as defined below) to be entered into in connection
with the issuance of such Securities, will not violate, conflict with or
constitute a default under (x) any agreement or instrument to which the Company
or its properties are subject, (y) any judicial or regulatory order or decree of
any governmental authority, or (z) any consent, approval, license, authorization
or validation of, or filing, recording or registration with, any governmental
authority;
(ii) any Debt
Securities will be issued pursuant to an indenture (each, an "Indenture"),
entered into by the Company and a duly qualified trustee (each, a "Trustee"),
substantially in the form of indenture filed as Exhibit 4.1 to the Registration
Statement; and that the Indenture, as then and theretofore supplemented, has
been duly qualified under the Trust Indenture Act of 1939, as amended; and,
that, at the time any Debt Securities are so issued, the related Indenture will
have been duly executed and delivered by, and will constitute a valid, legally
binding, enforceable agreement of, the Company and the applicable Trustee party
thereto; and that the certificates representing such Debt Securities will be in
the form of a Debt Security certificate contained in or approved in accordance
with such Indenture and otherwise will conform in all respects to the
requirements of applicable law; and that the certificates representing such Debt
Securities will have been duly executed, issued and delivered on the part of the
Company, and authenticated by the Trustee pursuant to the Indenture; and that
the number of shares of Preferred Stock and/or Common Stock issuable upon the
conversion or exchange of any Debt Securities issued pursuant to the
Registration Statement from time to time will not exceed the maximum authorized
number of shares of Preferred Stock and/or Common Stock, as applicable, under
the Articles, less that number of shares of Preferred Stock and/or Common Stock
that will have been issued and are outstanding, or are reserved for issuance for
other purposes, at such time; and that such Debt Securities will be issued for
consideration duly established by the Board of Directors the value of which, in
the case of Debt Securities convertible into or exchangeable for shares of
Preferred Stock and/or Common Stock, will not be less than the par value of the
shares of Preferred Stock and/or Common Stock, as appropriate, issuable upon
conversion or exchange;
(iii) any
shares of Preferred Stock issued pursuant to the Registration Statement from
time to time will not exceed the maximum authorized number of shares of
Preferred Stock under the Articles, less the number of shares of Preferred Stock
that will have been issued and are outstanding, or are reserved for issuance for
other purposes, at such time, will be issued pursuant to the Articles and any
Articles Supplementary of the Company, the terms of which will be in compliance
with the Maryland General Corporation Law, and will be duly authorized by the
Board of Directors of the Company or a properly authorized committee thereof and
duly executed on behalf of the Company and filed with the Department of
Assessments and Taxation of the State of Maryland, and will be issued for
consideration duly established by the Board of Directors the value of which will
not be less than the par value of the Preferred Stock and, in the case of
Preferred Stock convertible into or exchangeable for Common Stock, the par value
of the Common Stock issuable upon conversion or exchange; and that the form of
stock certificates representing the Preferred Stock will conform in all respects
to the applicable requirements of Maryland law and will have been duly executed,
issued and delivered on the part of the Company, and countersigned by the
Company's transfer agent;
(iv) any
shares of Common Stock issued pursuant to the Registration Statement from time
to time will not exceed the maximum authorized number of shares of Common Stock
under the Articles, less the number of shares of Common Stock that will have
been issued and are outstanding, or are reserved for issuance for other
purposes, at such time, and will be issued for consideration duly established by
the Board of Directors, the value of which will not be less than the par value
thereof; and that the form of stock certificates representing the Common Stock
will conform in all respects to the applicable requirements of Maryland law and
will have been duly executed, issued and delivered on the part of the Company,
and countersigned by the Company's transfer agent; and
(v) any
Securities Warrants will be issued pursuant to a warrant agreement (each, a
"Warrant Agreement") entered into by the Company and a warrant agent (each, a
"Warrant Agent") and containing the terms summarized in the Registration
Statement and governed by and construed in accordance with the internal laws of
the State of New York, except to the extent certain matters may be governed as a
matter of law by the Maryland General Corporation Law; and that, at the time any
Securities Warrants are so issued, the related Warrant Agreement will have been
duly executed and delivered by, and will constitute a valid, legally binding,
enforceable agreement of the Company and the applicable Warrant Agent party
thereto; and that the certificates representing such Securities Warrants will be
in the form of Securities Warrant certificate contained in or approved in
accordance with such Warrant Agreement and otherwise will conform in all
respects to the requirements of applicable law; and that the certificates
representing such Securities Warrants will have been duly executed, issued and
delivered on the part of the Company, and countersigned by the Warrant Agent
pursuant to the Warrant Agreement; and that the number of shares of Preferred
Stock and/or Common Stock issuable upon the exercise of any Securities Warrants
issued pursuant to the Registration Statement from time to time will not exceed
the maximum authorized number of shares of Preferred Stock and/or Common Stock,
as applicable, under the Articles, less that number of shares of Preferred Stock
and/or Common Stock that will have been issued and are outstanding, or are
reserved for issuance for other purposes, at such time; and that such Securities
Warrants will be issued for consideration duly established by the Board of
Directors the value of which, in the case of Securities Warrants exercisable for
shares of Preferred Stock and/or Common Stock, will not be less than the par
value of such Preferred Stock and/or Common Stock, as appropriate, issuable upon
exercise.
This
opinion is limited to (i) the substantive laws of the state of Maryland and the
federal laws of the United States, and (ii) solely with respect to the Debt
Securities and the Securities Warrants, the internal, substantive laws of the
State of New York as applied by courts located in New York without regard to
choice of law, and we do not express any opinions herein covering any other law.
While our Firm does not maintain an office or an active practice in the State of
New York, members of our Firm are admitted to the Bar of the State of New York,
and have reviewed this opinion letter and, to the extent the opinions expressed
herein relate to the laws of the State of New York, we advise you that we have,
with your permission, considered only those laws of the State of New York which
are typically applicable to debt securities and securities warrants similar to
the Debt Securities and the Securities Warrants, and we express no opinion with
respect to any other laws of the State of New York. Except as
otherwise indicated herein, we have not undertaken any independent investigation
of factual matters. The Securities may be issued from time to time on a delayed
or continuous basis, and this opinion is limited to the laws, including the
rules and regulations, as in effect on the date hereof, which laws are subject
to change with possible retroactive effect. We express no opinion
herein with respect to provisions relating to severability or
separability.
To the
extent that the obligations of the Company under any Debt Securities may be
dependent upon such matters, we assume for purposes of this opinion that the
Trustee under any Indenture is duly organized, validly existing and in good
standing under the laws of its jurisdiction or organization; that the Trustee is
duly qualified to engage in the activities contemplated by such Indenture; that
the Trustee is in compliance, with respect to acting as a trustee under such
Indenture, with all applicable laws and regulations; and that the Trustee has
the requisite organizational and legal power and authority to perform its
obligations under such Indenture.
Our
opinions in paragraphs 1 and 4 below, insofar as they pertain to the choice of
law provisions of the instruments referred to in such paragraphs, are rendered
in reliance upon New York General Obligations Law Section 5-1401, and are
expressly conditioned upon the assumption that the legality, validity, binding
effect and enforceability of said provisions will be determined by a court of
the State of New York or a United States federal court sitting in New York and
applying New York choice of law rules, including said Section 5-1401. We
express no opinion as to any such provision if such legality, validity, binding
effect or enforceability is determined by any other court, and we call your
attention to the decision of the United States District Court for the Southern
District of New York in Lehman Brothers Commercial Corp. v. Minmetals Int’l
Non-Ferrous Metals Trading Co., 179 F. Supp. 2d 119 (S.D.N.Y. 2000), which,
among other things, contains dicta relating to possible constitutional
limitations upon said Section 5-1401. We express no opinion as to any such
constitutional limitations upon said Section 5-1401 or their effect, if
any, upon any opinion herein expressed.
Based
upon and subject to the foregoing and the other qualifications set forth herein,
it is our opinion that, as of the date hereof:
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1.
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With
respect to any series of Debt Securities offered by the Company (the
"Offered Debt Securities"), when (i) the Registration Statement
(including all necessary post-effective amendments), has become effective
under the Securities Act; (ii) an appropriate prospectus supplement
or term sheet with respect to any Offered Debt Securities has been
prepared, delivered and filed in compliance with the Securities Act and
the applicable rules and regulations thereunder; (iii) if the Offered Debt
Securities are to be sold pursuant to a firm commitment underwritten
offering, the underwriting agreement with respect to the Offered Debt
Securities has been duly authorized, executed and delivered by the Company
and the other parties thereto; and (iv) any supplemental indenture,
officers' certificate or board resolution in respect of such Offered Debt
Securities has been duly authorized, executed and delivered by each party
thereto, when issued upon payment (and delivery) of the applicable
consideration, in accordance with the Indenture and any supplemental
indenture, officers' certificate or board resolution to be entered into or
adopted in connection with the issuance of such Offered Debt Securities
and the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and legally binding purchase or
agency agreement, will be valid and legally binding obligations of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity) including, without limitation, (1) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy and (2) concepts of materiality, reasonableness, good
faith and fair dealing, (c) public policy considerations which may
limit the rights of parties to obtain remedies, including, without
limitation, any provisions providing for indemnification, hold harmless or
exculpation, and (d) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in foreign
currencies, currency units or composite
currencies.
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2.
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With
respect to the shares of any series of Preferred Stock offered by the
Company (the "Offered Preferred Stock"), when (i) the Registration
Statement (including all necessary post-effective amendments), has become
effective under the Securities Act; (ii) an appropriate prospectus
supplement or term sheet with respect to the Offered Preferred Stock has
been prepared, delivered and filed in compliance with the Securities Act
and the applicable rules and regulations thereunder; (iii) if the Offered
Preferred Stock is to be sold pursuant to a firm commitment underwritten
offering, the underwriting agreement with respect to the Offered Preferred
Stock has been duly authorized, executed and delivered by the Company and
the other parties thereto; and (iv) the filing of the Articles
Supplementary with the Secretary of State of the State of Maryland has
duly occurred, the shares of the Offered Preferred Stock (including any
Preferred Stock duly issued upon conversion, exchange or exercise of any
Preferred Stock, Debt Securities or Securities Warrants), when issued,
upon payment (and delivery) of the applicable consideration, in accordance
with the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and legally binding purchase or
agency agreement, will be duly authorized, validly issued, fully paid and
nonassessable.
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3.
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With
respect to the shares of any Common Stock offered by the Company (the
Offered Common Stock"), when (i) the Registration Statement
(including all necessary post-effective amendments), has become effective
under the Securities Act; (ii) an appropriate prospectus supplement
or term sheet with respect to the Offered Common Stock has been prepared,
delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; and (iii) if the Offered
Common Stock is to be sold pursuant to a firm commitment underwritten
offering, the underwriting agreement with respect to the Offered Common
Stock has been duly authorized, executed and delivered by the Company and
the other parties thereto, the shares of Offered Common Stock (including
any Common Stock duly issued upon conversion, exchange or exercise of any
Preferred Stock, Debt Securities or Securities Warrants), when issued,
upon payment (and delivery) of the applicable consideration, in accordance
with the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and legally binding purchase or
agency agreement, will be duly authorized, validly issued, fully paid and
nonassessable.
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4.
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With
respect to any Securities Warrants offered by the Company (the "Offered
Warrants"), when (i) the Registration Statement (including all
necessary post-effective amendments), has become effective under the
Securities Act; (ii) an appropriate prospectus supplement or term
sheet with respect to the Offered Warrants has been prepared, delivered
and filed in compliance with the Securities Act and the applicable rules
and regulations thereunder, and (iii) if the Offered Warrants are to be
sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the Offered Warrants has been duly authorized,
executed and delivered by the Company and the other parties thereto, the
Offered Warrants, when issued, upon payment (and delivery) of the
applicable consideration, in accordance with the applicable Warrant
Agreement and the applicable underwriting agreement or any other duly
authorized, executed and delivered valid and legally binding purchase or
agency agreement, will be duly authorized and validly issued and will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, ( b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity) including, without limitation, (1) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy and (2) concepts of materiality, reasonableness, good
faith and fair dealing and (c) public policy considerations which may
limit the rights of parties to obtain remedies, including, without
limitation, any provisions providing for indemnification, hold harmless or
exculpation.
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With
respect to our opinions expressed above as they relate to Debt Securities or
other obligations of the Company denominated in a currency other than U.S.
Dollars, we note that (i) a New York statute provides that a judgment rendered
by a court of the State of New York in respect of an obligation denominated in
any such other currency would be rendered in such other currency and would be
converted into Dollars at the rate of exchange prevailing on the date of entry
of the judgment, and (ii) a judgment rendered by a federal court sitting in the
State of New York in respect of an obligation denominated in any such other
currency may be expressed in Dollars, but we express no opinion as to the rate
of exchange such Federal court would apply.
This
opinion letter is given as of the date hereof, and we express no opinion as to
the effect of subsequent events or changes in law occurring or becoming
effective after the date hereof. We assume no obligation to update this opinion
letter or otherwise advise you with respect to any facts or circumstances or
changes in law that may hereafter occur or come to our attention.
We hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement and to the reference to our firm under the heading "Legal Matters" in
the Prospectus included in the Registration Statement. In rendering this opinion
and giving this consent, we do not admit that we are an "expert" within the
meaning of Section 7 of the Securities Act and the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Powell Goldstein LLP
POWELL GOLDSTEIN LLP