Exhibit 5.1
6225 Smith Avenue
Baltimore, Maryland 21209-3600
MAIN 410.580.3000 FAX 410.580.3001
October 28, 2003
NEWCASTLE INVESTMENT CORP.
1251 Avenue of the Americas
New York, New York 10020
Re: Registration Statement on Form S-3 (Registration No. 333-109597)
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Ladies and Gentlemen:
We serve as special Maryland counsel to Newcastle Investment Corp., a
Maryland corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), of the sale and issuance of
an indeterminate number or amount, as the case may be, of (collectively, the
"Offered Securities"): (a) senior debt or subordinated debt securities (the
"Debt Securities"), (b) shares of Preferred Stock, $0.01 par value per share, of
the Company ("Preferred Stock"), (c) depositary shares representing shares of
Preferred Stock (the "Depositary Shares") and evidenced by depositary receipts
(the "Depositary Receipts"), (d) warrants to purchase debt or equity securities
of the Company (the "Warrants"), and (e) shares of Common Stock, $.01 par value
per share, of the Company ("Common Stock"), all of which may be issued from time
to time on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act at an aggregate public offering price not to exceed $750,000,000
and are covered by the above-identified Registration Statement (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission"). This opinion is being provided at your request in
connection with the filing of the Registration Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
1. The Registration Statement and the related form of prospectus included
therein in the form in which it was transmitted to the Commission under the Act;
2. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company (the "Bylaws"), certified as of the date
hereof by its Secretary;
NEWCASTLE INVESTMENT CORP.
October 28, 2003
Page 2
4. Resolutions adopted by the Board of Directors of the Company relating to
(a) the registration, sale and issuance of the Offered Securities and (b) the
creation and delegation of authority to a Pricing Committee (the "Pricing
Committee") of the Board of Directors in connection therewith, certified as of
the date hereof by the Secretary of the Company;
5. A certificate of the SDAT as to the good standing of the Company, dated
as of the date hereof; and
6. A certificate (the "Officer's Certificate") executed by Randal A.
Nardone, Secretary of the Company, dated as of the date hereof.
In expressing the opinion set forth below, we have assumed the
following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding.
4. All Documents submitted to us as originals are authentic. All Documents
submitted to us as certified or photostatic copies conform to the original
documents. All signatures on all such Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and complete. All
statements and information contained in the Documents are true and complete.
There has been no oral or written modification or amendment to the Documents, or
waiver of any provision of the Documents, by action or omission of the parties
or otherwise.
5. The Offered Securities have not been issued or transferred in violation
of any restriction or limitation on transfer or ownership of shares of Capital
Stock (as defined in the Charter) contained in Article VII or Article VIII of
the Charter.
NEWCASTLE INVESTMENT CORP.
October 28, 2003
Page 3
6. Prior to the issuance of the Offered Securities, the Pricing Committee
will adopt resolutions satisfying the requirements of Sections 2-203 and 2-208
of the Maryland General Corporation Law.
7. Any Debt Securities will be issued under a valid and legally binding
indenture (each, an "Indenture") that conforms to the description thereof set
forth in the Prospectus or the applicable prospectus supplement, and will comply
with the Charter, the Bylaws and applicable law.
8. Prior to the issuance of any shares of Common Stock or Preferred Stock
(including any Depositary Shares), the Company will have available for issuance,
under the Charter, the requisite number of authorized but unissued shares of
Common Stock or Preferred Stock.
9. Appropriate certificates representing shares of Common Stock or
Preferred Stock, as the case may be, will be executed and delivered upon
issuance and sale of any shares of Common Stock or Preferred Stock (including
any Depositary Shares), and will comply with the Charter, the Bylaws and
applicable law.
10. Any Depositary Shares will be issued under a valid and legally binding
deposit agreement (each, a "Deposit Agreement") that conforms to the description
thereof set forth in the Prospectus or the applicable prospectus supplement, and
will comply with the Charter, the Bylaws and applicable law.
11. Appropriate Depositary Receipts representing Depositary Shares will be
executed and delivered prior to or upon the issuance and sale of any Depositary
Shares and will comply with the Charter, the Bylaws, the Deposit Agreement and
applicable law.
12. Any Warrants will be issued under a valid and legally binding warrant
agreement (each, a "Warrant Agreement") that conforms to the description thereof
set forth in the Prospectus or the applicable prospectus supplement, and will
comply with the Charter, the Bylaws and applicable law.
13. The underwriting, subscription or purchase agreements for offerings of
the Offered Securities will be valid and legally binding contracts that conform
to the descriptions thereof set forth in the Prospectus or the applicable
prospectus supplement.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by
virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
NEWCASTLE INVESTMENT CORP.
October 28, 2003
Page 4
2. With respect to shares of Common Stock, when (a) shares of Common Stock
have been duly authorized by the Board of Directors of the Company, (b) the
Registration Statement has become effective under the Securities Act, (c) the
terms of the issuance and sale of shares of Common Stock have been duly
established in conformity with the Charter and the Bylaws, which terms do not
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company, and (d) the shares of Common Stock have been duly issued and
sold as contemplated by the Registration Statement and consideration therefor
has been received by the Company, such shares of Common Stock will be duly
authorized, legally issued, fully paid and nonassessable.
3. With respect to shares of Preferred Stock, when (a) shares of Preferred
Stock have been duly authorized by the Board of Directors of the Company, (b)
the Registration Statement has become effective under the Securities Act, (c)
appropriate articles supplementary to the Charter relating to the class or
series of Preferred Stock to be sold under the Registration Statement (in each
such case, "Articles Supplementary") have been duly adopted by the Board of
Directors of the Company and Articles Supplementary have been filed with and
accepted for record by the SDAT, (d) the terms of the issuance and sale of
shares of such class or series of Preferred Stock have been duly established in
conformity with the Charter and the Bylaws, which terms do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, and (e) the shares of such class or series of Preferred Stock have
been duly issued and sold as contemplated by the Registration Statement and
consideration therefor has been received by the Company, such shares of
Preferred Stock will be duly authorized, legally issued, fully paid and
nonassessable.
4. With respect to the Warrants, when (a) the Registration Statement has
become effective under the Securities Act, (b) a Warrant Agreement relating to
the Warrants has been duly authorized, executed and delivered and the Warrants
and the securities of the Company into which the Warrants are exercisable have
been duly authorized by the Board of Directors of the Company, (c) the terms of
the Warrants and of their issuance and sale have been duly established in
conformity with the Charter, the Bylaws and the Warrant Agreement, which terms
do not violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company, and (d) the Warrants have been duly executed and countersigned
in accordance with the Warrant Agreement and duly issued and sold as
contemplated by the Registration Statement and consideration therefor has been
received by the Company, the shares of Common Stock or Preferred Stock or the
Debt Securities into which the Warrants are exercisable will be duly authorized.
5. With respect to the Debt Securities, when (a) the Registration Statement
becomes effective under the Securities Act, (b) the Indenture relating to the
Debt Securities has been duly
NEWCASTLE INVESTMENT CORP.
October 28, 2003
Page 5
authorized, executed and delivered and the Debt Securities have been duly
authorized by the Board of Directors of the Company, (c) the terms of the Debt
Securities and of their issuance have been duly established in conformity with
the Charter, the Bylaws and the Indenture, which terms do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, and (d) the Debt Securities have been duly executed and
countersigned in accordance with the Indenture and duly issued and sold as
contemplated by the Registration Statement and consideration therefor has been
received by the Company, the Debt Securities will be duly authorized.
6. With respect to the Depositary Shares, when (a) the Registration
Statement becomes effective under the Securities Act, (b) the Deposit Agreement
relating to the Depositary Shares has been duly authorized, executed and
delivered and the Depositary Shares have been duly authorized by the Board of
Directors of the Company, (c) the terms of the Depositary Shares and of their
issuance and sale have been duly established in conformity with the Charter, the
Bylaws and the Deposit Agreement, which terms do not violate any applicable law
or result in a default under or breach of any agreement or instrument binding
upon the Company and comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, and (d) the
Depositary Shares have been duly issued and sold as contemplated by the
Registration Statement and consideration therefor has been received by the
Company, the Debt Securities will be duly authorized.
The foregoing opinion is limited to the substantive laws of the State of
Maryland and we do not express any opinion herein concerning any other law. We
express no opinion as to compliance with the securities (or "blue sky") laws of
the State of Maryland. The opinion expressed herein is subject to the effect of
judicial decisions which may permit the introduction of parol evidence to modify
the terms or the interpretation of agreements.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as
an exhibit to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein under the
heading "Legal Matters". 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
Act.
Very truly yours,
/s/ PIPER RUDNICK LLP