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[Letterhead of Bingham McCutchen LLP]
April 12, 2005
Heritage Property Investment Trust, Inc.
131 Dartmouth Street
Boston, Massachusetts 02116
Ladies and Gentlemen:
We have acted as special tax counsel to Heritage Property Investment Trust, Inc., a Maryland corporation (the "Company"), in connection with the preparation of a registration statement filed with the Securities and Exchange Commission on April 12, 2005 on Form S-3 (the "Registration Statement"), which has been prepared in connection with the registration of 19,563,558 shares of the Company's common stock, $0.001 par value per share (the "Resale Registration"). In connection with the Resale Registration, we have been asked to provide you our opinion as to certain federal income tax matters.
In connection with our opinion, we have examined and relied upon:
- (i)
- the Registration Statement;
- (ii)
- the Articles of Incorporation of the Company, filed with the Maryland Department of Assessments and Taxation on July 1, 1999, as amended through the date hereof (the "Charter");
- (iii)
- the Amended and Restated Bylaws of the Company, as amended through the date hereof;
- (iv)
- the articles of incorporation, bylaws and stock ownership information of each corporation that is a direct or indirect wholly-owned subsidiary of the Company, as set forth onSchedule A attached hereto (the "Corporate Subsidiaries");
- (v)
- the certificate of formation, if applicable, and the partnership agreement, limited liability company operating agreement, or other organizational documents, as applicable, of each partnership, limited liability company, or other non-corporate business entity in which the Company directly or indirectly owns an interest, as set forth onSchedule B attached hereto (the "Partnership Subsidiaries");
together with the annexes, schedules and exhibits attached thereto ((i)-(v), together with such annexes, schedules and exhibits, collectively, the "Documents"), and such other documents, records and matters of law as we have deemed necessary or appropriate for purposes of rendering the opinion set forth herein.
In our examination, we have assumed (i) the authenticity and completeness of all original documents reviewed by us in original or copy form, (ii) the conformity to the original documents of all documents reviewed by us as copies, including electronic copies, (iii) the authority and capacity of the individual or individuals who executed any document on behalf of any person or entity to so execute such document, (iv) the genuineness of all signatures on documents examined by us, and (v) the accuracy and completeness of all records made available to us. We have assumed that the Company, the Corporate Subsidiaries, and the Partnership Subsidiaries have been, and will continue to be, operated in the manner described in the Registration Statement and in accordance with the Officer's Certificate (as defined below) and all applicable laws.
As to certain facts material to our opinion, we have, with your permission, relied upon the representations of a duly appointed officer of the Company contained in the certificate dated as of the date hereof (the "Officer's Certificate"), principally relating to the organization and operations of the
Company, the Corporate Subsidiaries, and the Partnership Subsidiaries. Our opinion assumes that each representation set forth in the Officer's Certificate is, and will continue to be, true, correct and complete and that each such representation that speaks to the future, or to the intention of any person(s), or to the belief or knowledge of any person(s), is, and will continue to be, true, correct and complete as if made without such qualification. We have not made an independent investigation of the representations set forth in the Officer's Certificate; however, during the course of our representation, we have not become aware of any facts which call into question the accuracy of the representations set forth in the Officer's Certificate.
Our opinion is limited solely to the federal income tax laws of the United States, does not cover matters arising under the laws of any other jurisdiction, and is based on our analysis of the current provisions of the Internal Revenue Code of 1986, as amended (the "Code"), existing case law, existing Treasury Regulations, and published revenue rulings and procedures of the Internal Revenue Service (the "IRS") that are in effect as of the date of this opinion, all of which are subject to change and new interpretation, both prospectively and retroactively. Any such changes or new interpretations, as well as changes in the facts as they have been represented to or assumed by us, could affect our analysis and conclusions. Although the conclusions set forth herein represent our best judgment as to the probable outcome on the merits of such matters, the IRS and the courts are not bound by, and may disagree with, the conclusions set forth herein. This opinion is rendered only as of the date hereof, and we assume no obligation to update our opinion to address other facts or any changes in law or interpretation thereof that may hereafter occur or hereafter come to our attention.
Opinion
Based on the foregoing and in reliance thereon and subject thereto, it is our opinion that commencing with the Company's initial taxable year ended December 31, 1999, the Company has been organized and has operated in conformity with the requirements for qualification as a "real estate investment trust" (a "REIT") under the Code and the Company's current organization and proposed method of operation (as described in the Registration Statement and the Officer's Certificate) will permit the Company to continue to so qualify.
The Company's qualification as a REIT depends upon the Company's ability to meet on a continuing basis the asset composition, source of income, shareholder diversification, distribution, record keeping and other requirements of the Code that apply to a REIT. We will not review on a continuing basis the Company's compliance with these requirements. Accordingly, no assurance can be given that the actual results of the Company's operations for any given taxable year will satisfy the requirements for qualification as a REIT under the Code.
We express no opinion other than that specifically set forth above. This opinion, which speaks as of the date hereof, has been prepared solely for your use in connection with the Resale Registration and may not be used for any other purpose without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Bingham McCutchen LLP
BINGHAM MCCUTCHEN LLP
Schedule A
Corporate Subsidiaries
Bradley Financing Corp., a Delaware corporation | ||
Bradley Spring Mall, Inc., a Delaware corporation | ||
Heritage-Austen Acquisition, Inc., a Maryland corporation | ||
Heritage Commonwealth Corp., a Massachusetts corporation | ||
Heritage Clocktower SPE MGR Inc., a Delaware corporation | ||
Heritage Montgomery SPE MGR Inc., a Delaware corporation | ||
Heritage Realty Management Inc., a Maryland corporation | ||
Heritage Realty Special LP Corporation, a Maryland corporation | ||
Heritage SPE Corp., a Delaware corporation | ||
Heritage Spradlin SPE MGR Inc., a Delaware corporation | ||
Heritage Warminster SPE MGR Inc., a Delaware corporation |
Schedule B
Partnership Subsidiaries
131 Dartmouth Street LLC, a Massachusetts limited liability company | ||
Berkshire Crossing Retail LLC, a Delaware limited liability company | ||
Berkshire Crossing Shopping Center LLC, a Delaware limited liability company | ||
Bradley Financing Partnership, a Delaware general partnership | ||
Bradley Operating Limited Partnership, a Delaware limited partnership | ||
Bradley Spring Mall LP, a Delaware limited partnership | ||
Colby Grove Retail LLC, a Delaware limited liability company | ||
Grand Traverse Crossing Shopping Center LLC, a New York limited liability company | ||
Grove Court Shopping Center LLC, a Delaware limited liability company | ||
Heritage Buckingham Place SPE MGR LLC, a Delaware limited liability company | ||
Heritage Buckingham Place SPE Limited Partnership, a Delaware limited partnership | ||
Heritage Burlington Square LLC, a Delaware limited liability company | ||
Heritage Clocktower SPE LLC, a Delaware limited liability company | ||
Heritage Colonial Commons GP, LLC, a Delaware limited liability company | ||
Heritage Colonial Commons LP, a Delaware limited partnership | ||
Heritage Colonial Commons Trust, a Maryland business trust | ||
Heritage Colonial Holdings GP, LLC, a Delaware limited liability company | ||
Heritage Colonial Holdings LP, a Delaware limited partnership | ||
Heritage Colonial Holdings Trust, a Maryland business trust | ||
Heritage County Line Plaza SPE MGR LLC, a Delaware limited liability company | ||
Heritage County Line Plaza SPE LLC, a Delaware limited liability company | ||
Heritage East Richardson GP LLC, a Delaware limited liability company | ||
Heritage East Richardson Limited Partnership, a Delaware limited partnership | ||
Heritage Lakes Crossing, LLC, a Delaware limited liability company | ||
Heritage Mishawaka LLC, a Delaware limited liability company | ||
Heritage Montgomery SPE LLC, a Delaware limited liability company | ||
Heritage Property Acquisition LLC, a Delaware limited liability company | ||
Heritage Property Investment Limited Partnership, a Delaware limited partnership | ||
Heritage Southwest GP LLC, a Delaware limited liability company | ||
Heritage Southwest Limited Partnership, a Delaware limited partnership | ||
Heritage SPE LLC, a Delaware limited liability company | ||
Heritage SPE MGR LLC, a Delaware limited liability company | ||
Heritage Spradlin SPE LLC, a Delaware limited liability company | ||
Heritage Trinity Commons SPE MGR LLC, a Delaware limited liability company | ||
Heritage Trinity Commons SPE Limited Partnership, a Delaware limited partnership | ||
Heritage Warminster SPE LLC, a Delaware limited liability company | ||
Heritage Wolfcreek I, LLC, a Delaware limited liability company | ||
Heritage Wolfcreek II, LLC, a Delaware limited liability company | ||
Heritage Wolfcreek III, LLC, a Delaware limited liability company | ||
NET Manager LLC, a Delaware limited liability company | ||
NH Heritage Limited Partnership, a New Hampshire limited partnership | ||
Pioneer Grand Traverse Company, LLC, a New York limited liability company | ||
Salmon Run Plaza LLC, a Delaware limited liability company | ||
Williamson Square Associates Limited Partnership, an Illinois limited partnership |
Schedule A Corporate Subsidiaries
Schedule B Partnership Subsidiaries