Exhibit 8.1
[Letterhead of Bingham McCutchen LLP]
June 8, 2004
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 June 7, 2004 on Form S-4 (the “RegistrationStatement”), which has been prepared in connection with the offer to exchange the Company’s registered 5.125% Notes Due 2014 for the Company’s unregistered 5.125% Notes Due 2014 (the “ExchangeOffer”). In connection with the Exchange Offer, 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; |
together with the annexes, schedules and exhibits attached thereto ((i)–(iii), 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. We have also reviewed and relied on an opinion letter from Stokes, Bartholomew, Evans & Petree, P.A., dated October 31, 2001, as to certain matters of Tennessee law (the “TennesseeOpinion”).
Heritage Property Investment Trust, Inc.
June 8, 2004
Page 2
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, each corporation that is a direct or indirect wholly-owned subsidiary of the Company (collectively, the “CorporateSubsidiaries”, the names of which are set forth onScheduleA attached hereto), and each partnership or limited liability company in which the Company directly or indirectly owns an interest (collectively, the “PartnershipSubsidiaries”, the names of which are set forth onScheduleB attached hereto) 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’sCertificate”), 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 or statement 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.
Insofar as relevant to our opinion set forth herein, we have also, with your permission, assumed the correctness of each of the conclusions expressed in the Tennessee Opinion.
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
Heritage Property Investment Trust, Inc.
June 8, 2004
Page 3
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.
Heritage Property Investment Trust, Inc.
June 8, 2004
Page 4
We express no opinion other than those specifically set forth above. This opinion, which speaks as of the date hereof, has been prepared solely for your use in connection with the Exchange Offer and may not be used for any other purpose without our prior written consent.
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 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 Clocktower SPE LLC, a Delaware limited liability company
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
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
