EXHIBIT 5
GOODWIN, PROCTER & HOAR LLP
Counsellors at Law
Exchange Place
Boston, Massachusetts 02109-2881
Telephone (617) 570-1000
Telcopier (617) 523-1231
November 6, 1996
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Re: $350,000,000 Aggregate Offering Price of
Securities of New Plan Realty Trust
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As special Massachusetts counsel for New Plan Realty Trust (the "Trust"),
we render this opinion in connection with the Trust's registration statement on
Form S-3 (the "Registration Statement") to be filed by the Trust with the
Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended, relating to the issuance from time to time of up to
$350,000,000 aggregate offering price of one or more series of (i) unsecured
debt securities, which may be either senior debt securities (the "Senior
Securities") or subordinated debt securities (the "Subordinated Securities"
and, together with the Senior Securities, the "Debt Securities"), (ii)
preferred shares of beneficial interest, par value $1.00 per share (the
"Preferred Shares"), (iii) Preferred Shares represented by depositary shares
(the "Depositary Shares") that are represented by Depositary Receipts (the
"Depositary Receipts"), (iv) common shares of beneficial interest without par
value (the "Common Shares"), (v) warrants to purchase Debt Securities,
Preferred Shares or Common Shares (the "Warrants") or (vi) rights to purchase
Common Shares (the "Rights"). Any Debt Securities may be convertible into
Preferred Shares or Common Shares, and any Preferred Shares may be convertible
into Common Shares. The Debt Securities, Preferred Shares, Depositary Shares
and Depositary Receipts, Common Shares, Warrants and Rights are collectively
referred to herein as the "Securities." The amount or number and specific
terms of each issuance of Securities are subject to further resolutions of the
Trustees of the Trust (each a "Further Trustees' Resolution") and will be
described in a prospectus supplement ("Prospectus Supplement") to the
Prospectus (or amendment thereto) constituting a part of the Registration
Statement (the "Prospectus").
The Senior Securities are to be issued under an indenture dated as of
March 29, 1995 as the same may be supplemented or amended from time to time
(the "Senior Securities Indenture") between the Trust and State Street Bank
and Trust Company as successor to The First National Bank of Boston as trustee
(the "Senior Securities Trustee"). The Subordinated Securities are to be
issued under an Indenture, as amended or supplemented from time to time (the
"Subordinated Securities Indenture"), in form and containing specific terms
authorized by a Further Trustees' Resolution between the Trust and a trustee to
be designated in a Further Trustees' Resolution (the "Subordinated Securities
Trustee"). The Depositary Shares are to be issued under one or more Deposit
Agreements in form and containing specific terms authorized by a Further
Trustees' Resolution (each a "Deposit Agreement"), each to be between the Trust
and the depositary identified therein (each a "Depositary"). The Warrants are
to be issued under one or more Warrant Agreements in form and containing
specific terms authorized by a Further Trustees' Resolution (each a "Warrant
Agreement"), each to be between the Trust and the warrant agent identified
therein (each a "Warrant Agent"). The Rights are to be issued under one or
more rights agreements in form and containing specific terms authorized by a
Further Trustees' Resolution (each a "Rights Agreement"), each to be between
the Trust and the rights agent identified therein (each a "Rights Agent").
In our capacity as Massachusetts counsel to the Trust, we have examined
the Declaration of Trust of the Trust, as amended (the "Declaration of Trust"),
the Registration Statement in the form in which you have advised us will be
filed with the SEC, a certificate of the Secretary of the Trust as to
resolutions adopted by the Trustees of the Trust authorizing the filing of the
Registration Statement and related matters, and such other documents as we have
deemed necessary or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
We are members of the Bar of the Commonwealth of Massachusetts and we
express no opinion herein concerning any law other than the laws of the
Commonwealth of Massachusetts. We also express no opinion on Massachusetts
securities ("blue sky") or tax laws.
Subject to the foregoing and the other matters set forth herein, it is our
opinion that:
1. The Senior Securities Indenture has been duly authorized,
executed and delivered by the Trust and constitutes the legally valid and
binding agreement of the Trust, enforceable against the Trust in accordance
with its terms.
2. The Senior Securities have been duly authorized; and, when the
amount and specific terms thereof have been duly established in accordance with
the Declaration of Trust and a Further Trustees' Resolution, and when Senior
Securities have been duly established pursuant to the Senior Securities
Indenture, duly authenticated by the Senior Securities Trustee and duly
executed and delivered on behalf of the Trust against payment therefor in
accordance with the terms and provisions of the Senior Securities Indenture and
as contemplated by the Registration Statement and/or the applicable Prospectus
Supplement, such Senior Securities will constitute legally issued and binding
obligations of the Trust.
3. The Subordinated Securities have been duly authorized; and, when
the amount and specific terms thereof have been duly established in accordance
with a Subordinated Securities Indenture that is in accordance with the
Declaration of Trust and a Further Trustees' Resolution, and when Subordinated
Securities have been established pursuant to such Subordinated Securities
Indenture, duly authenticated by the Subordinated Securities Trustee and duly
executed and delivered on behalf of the Trust against payment therefor in
accordance with the terms and provisions of such Subordinated Securities
Indenture and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, such Subordinated Securities will constitute
legally issued and binding obligations of the Trust.
4. The Preferred Shares have been duly authorized; and, when the
number and specific terms of Preferred Shares have been duly established in
accordance with the Declaration of Trust and a Further Trustees' Resolution
and, upon issuance, delivery and payment therefor in the manner contemplated by
the Registration Statement and/or the applicable Prospectus Supplement, such
Preferred Shares will be validly issued, fully paid and nonassessable by the
Trust.
5. The Depositary Shares have been duly authorized; and, when the
number and specific terms thereof have been duly established in accordance with
the Declaration of Trust and a Further Trustees' Resolution, and when the
Depositary Receipts representing Depositary Shares have been duly executed and
delivered by the Depositary and delivered to and paid for by the purchasers
thereof in the manner contemplated by a Deposit Agreement that conforms to the
provisions of a Further Trustees' Resolution and in the manner contemplated by
the Registration Statement and/or the applicable Prospectus Supplement, such
Depositary Shares will be validly issued, fully paid and nonassessable by the
Trust and will entitle the holders thereof to the rights specified in the
Depositary Receipts and the Deposit Agreement.
6. The Common Shares have been duly authorized; and upon issuance,
delivery and payment therefor pursuant to the provisions of a Further Trustees'
Resolution and in the manner contemplated by the Registration Statement and/or
the applicable Prospectus Supplement, the Common Shares that are the subject of
such Further Trustees' Resolution will be validly issued, fully paid and
nonassessable by the Trust.
7. The Warrants have been duly authorized; and, when the number and
specific terms thereof have been duly established in accordance with the
Declaration of Trust and a Further Trustees' Resolution and when duly executed
and delivered by the Trust and countersigned by the applicable Warrant Agent in
accordance with an applicable Warrant Agreement that conforms to the provisions
of a Further Trustees' Resolution and when delivered to and paid for by the
purchasers thereof in the manner contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, such Warrants will constitute
legally issued, valid and binding obligations of the Trust and will entitle the
holders thereof to the rights specified in the Warrant Agreement.
8. The Rights have been duly authorized; and, when the number and
specific terms thereof have been duly established in accordance with the
Declaration of Trust and a Further Trustees' Resolution and when duly executed
and delivered by the Trust and countersigned by the applicable Rights Agent in
accordance with an applicable Rights Agreement that conforms to the provisions
of a Further Trustees' Resolution and when distributed to shareholders of the
Trust entitled to receive such distribution in accordance with the applicable
Rights Agreement in the manner contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, such Rights will constitute
legally issued, valid and binding obligations of the Trust and will entitle the
holders thereof to the rights specified in the Rights Agreement.
The opinions set forth above are subject to the following exceptions,
limitations, qualifications and further assumptions: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or law; (iii) the unenforceability
under certain circumstances of provisions providing for the indemnification of
or contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy; (iv) we express
no opinion concerning the enforceability of the waiver of rights or defenses
contained in Section 514 of the Senior Securities Indenture or any similar
provision to be contained in the Subordinated Securities Indenture; (v) we
express no opinion with respect to whether acceleration of Debt Securities may
affect the collectibility of any portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon; and (vi) we
assume that no Further Trustees' Resolution will provide for or authorize any
action that contravenes or is inconsistent with either the Declaration of Trust
or the laws of Massachusetts.
To the extent that the obligations of the Trust under the Senior
Securities Indenture, the Subordinated Securities Indenture, any Deposit
Agreement, any Warrant Agreement or any Rights Agreement may be dependent upon
such matters, we assume for purposes of this opinion that the relevant Senior
Securities Trustee or Subordinated Securities Trustee ("Trustee"), Depositary,
Warrant Agent or Rights Agent named in the relevant Indenture or Agreement is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is duly qualified to engage in the activities
contemplated by the relevant Indenture or Agreement and has been duly
authorized, executed and delivered by the relevant Trustee, Depositary, Warrant
Agent or Rights Agent and constitutes the legally valid and binding obligation
of the relevant Trustee, Depositary, Warrant Agent or Rights Agent enforceable
against the relevant Trustee, Depositary, Warrant Agent or Rights Agent in
accordance with its terms; and that the relevant Trustee, Depositary, Warrant
Agent or Rights Agent is in compliance, generally with respect to acting under
the relevant Indenture or Agreement, with all requisite organizational
requirements and has full legal power and authority to perform its obligations
under the relevant Indenture or Agreement.
We consent to your filing this opinion as an exhibit to the Registration
Statement, and to the reference to our firm under the caption "Legal Matters"
in the Prospectus.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
Goodwin, Procter & Hoar LLP