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Exhibit 5.01
HOGAN & HARTSON L.L.P
COLUMBIA SQUARE
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
November 18, 1998
Boards of Directors,
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
1120 Avenue of the Americas
New York, NY 10036
Ladies and Gentlemen:
We are acting as counsel to New Plan Excel Realty Trust, Inc., a
Maryland corporation (the "Company"), and New Plan Realty Trust, a
Massachusetts business trust (the "Trust"), in connection with the
registration statement on Form S-3 of the Company and the Trust being filed
with the U.S. Securities and Exchange Commission (the "SEC") on the date
hereof (the "Registration Statement"), relating to certain securities of the
Company and the Trust with an aggregate initial public offering price of up
to $1,000,000,000 (or the equivalent thereof in one or more, or units of two
or more, foreign currencies or composite currencies based on the exchange
rate at the time of sale). Specifically, the Registration Statement relates
to the following securities of the Company: (i) debt securities (the "Debt
Securities"); (ii) shares of preferred stock, $.01 par value per share (the
"Preferred Shares"); (iii) Preferred Shares represented by depositary
receipts (the "Depositary Shares"); (iv) shares of common stock, $.01 par
value per share (the "Common Shares"); (v) warrants to purchase Debt
Securities (the "Debt Warrants"); (vi) warrants to purchase Preferred Shares,
Depositary Shares or Common Shares (the "Equity Warrants"); and (vii) rights
to purchase Common Shares (the "Rights"). The Registration Statement also
relates to guarantees of the Debt Securities by the Trust (the "Debt
Guarantees" and, together with the Debt Securities, Preferred Shares,
Depositary Shares, Common Shares, Debt Warrants, Equity Warrants and Rights,
the "Securities").
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Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 2
Any of the Securities may be sold from time to time and on a
delayed or continuous basis, as set forth in the prospectus that forms a part
of the Registration Statement, and as to be set forth in one or more
supplements to such prospectus. This opinion letter is furnished at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of
the following documents:
1. The Registration Statement (including the exhibits
thereto referred to below).
2. The charter of the Company, as certified by the
Department of Assessments and Taxation of the State of
Maryland (the "Department") on October 22, 1998 and by the
Assistant Secretary of the Company on the date hereof as
being complete, accurate and in effect.
3. The bylaws of the Company, as certified by the Assistant
Secretary of the Company on the date hereof as being complete,
accurate and in effect.
4. Certificate of good standing of the Company issued by the
Department, dated October 23, 1998.
5. The declaration of trust of the Trust, as certified by the
Secretary of the Commonwealth of Massachusetts (the
"Secretary of State") on October 22, 1998 and by the
Assistant Secretary of the Trust on the date hereof as
being complete, accurate and in effect.
6. Certificate of good standing of the Trust issued by the
Secretary of State, dated October 23, 1998.
7. Resolutions of the board of directors of the Company, as
certified by the Assistant Secretary of the Company on the
date hereof as having been adopted at a meeting on October
8, 1998, and as being complete, accurate and in effect,
relating to the filing of the Registration Statement and
related matters.
8. Resolutions of the board of trustees of the Trust, as
certified by the Assistant Secretary of the Trust on the
date hereof as having been adopted at a meeting on October
8, 1998, and as being
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Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
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complete, accurate and in effect, relating to the filing of
the Registration Statement and related matters.
In our examination of these documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of the documents and the conformity
to originals of documents submitted to us as copies (including telecopies).
For purposes of rendering the opinions set forth below, we have not, except
as specifically identified above, made any independent review or
investigation of factual or other matters, including the organization,
existence, good standing, assets, business or affairs of the Company and the
Trust. This opinion letter is provided, and all statements herein are made,
in the context of the foregoing.
For purposes of this opinion letter, we have assumed that: (i)
the issuance of any Securities of the Company will have been duly authorized
and the terms of such Securities will have been duly determined and fixed by
proper action of the board of directors of the Company or a duly authorized
committee of such board consistent with the procedures and terms described in
the Registration Statement and in accordance with the Company's charter and
bylaws and applicable Maryland corporate law, in a manner that does not
violate any law, government or court-imposed order or restriction or
agreement or instrument then binding on the Company or otherwise impair the
legal or binding nature of the obligations represented by the applicable
Company Securities; (ii) the issuance of any Debt Guarantees will have been
duly authorized and the terms of such Debt Guarantees will have been duly
determined and fixed by proper action of the board of trustees of the Trust
or a duly authorized committee of such board consistent with the procedures
and terms described in the Registration Statement and in accordance with the
Trust's declaration of trust and applicable Massachusetts law, in a manner
that does not violate any law, government or court-imposed order or
restriction or agreement or instrument then binding on the Trust or otherwise
impair the legal or binding nature of the obligations represented by such
Debt Guarantees; (iii) the Registration Statement will have been declared
effective under the Securities Act of 1933, as amended (the "Act"), and no
stop order suspending its effectiveness will have been issued and remain in
effect; (iv) any senior Debt Securities and Debt Guarantees thereof will be
issued pursuant to an indenture for senior Debt Securities and any
subordinated Debt Securities and Debt Guarantees thereof will be issued
pursuant to an indenture for subordinated Debt Securities, each substantially
in the form of such indenture filed as Exhibit 4.01 and Exhibit 4.02,
respectively, to the Registration Statement, with items shown in such exhibit
as subject to completion completed in a satisfactory manner; (v) the
indenture under which any Debt Securities and Debt
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Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
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Guarantees are issued will have been qualified under the Trust Indenture Act of
1939, as amended; (vi) before the issuance of any Preferred Shares or Depositary
Shares, appropriate articles supplementary will have been approved by
appropriate board action and will have been accepted for record by the
Department; (vii) any Depositary Shares will be issued by a financial
institution identified as depositary in and under a deposit agreement between
the Company and the depositary in substantially the form of the deposit
agreement filed as Exhibit 4.03 to the Registration Statement, with items shown
in such exhibit as subject to completion completed in a satisfactory manner;
(viii) any Equity Warrants will be issued under one or more equity warrant
agreements between the Company and a financial institution identified therein as
warrant agent substantially in the form of the equity warrant agreement filed as
Exhibit 4.04 to the Registration Statement, with items shown in such exhibit as
subject to completion completed in a satisfactory manner; (ix) any Debt Warrants
will be issued under one or more debt warrant agreements between the Company and
a financial institution identified therein as warrant agent substantially in the
form of the debt warrant agreement filed as Exhibit 4.05 to the Registration
Statement, with items shown in such exhibit as subject to completion completed
in a satisfactory manner; (x) any Rights will be issued under one or more rights
agreements between the Company and a financial institution identified therein as
rights agent conferring legal rights on the holders of the Rights equivalent to
the legal rights of holders of common stock warrants issued under a warrant
agreement substantially in the form of the equity warrant agreement filed as
Exhibit 4.04 to the Registration Statement, with items shown in such exhibit as
subject to completion completed in a satisfactory manner; (xi) if being sold by
the issuer thereof, the Securities will be delivered against payment of valid
consideration therefor and in accordance with the terms of the action of the
board of directors of the Company or board of trustees of the Trust, as
applicable, or a duly authorized committee thereof authorizing such sale and any
applicable underwriting agreement or purchase agreement and as contemplated by
the Registration Statement; and (xii) the Company will remain a Maryland
corporation and the Trust will remain a Massachusetts business trust.
To the extent that the obligations of the Company or the Trust
with respect to the Securities may be dependent upon such matters, we assume
for purposes of this opinion that any other party under the indenture for any
Debt Securities and Debt Guarantees, under the deposit agreement for any
Depositary Shares, under the debt warrant agreement for any Debt Warrants,
under the equity warrant agreement for any Equity Warrants and under the
rights agreement for any Rights, namely, the trustee, the depositary, the
warrant agent or the rights agent, respectively, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that such other party is duly qualified to engage
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Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
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in the activities contemplated by such indenture, deposit agreement, warrant
agreement or rights agreement, as applicable; that such indenture, deposit
agreement, warrant agreement or rights agreement, as applicable, has been duly
authorized, executed and delivered by the other party and constitutes a legal,
valid and binding obligation of the other party enforceable against the other
party in accordance with its terms; that such other party is in compliance with
respect to performance of its obligations under such indenture, deposit
agreement, warrant agreement or rights agreement, as applicable, with all
applicable laws and regulations; and that such other party has the requisite
organizational and legal power and authority to perform its obligations under
such indenture, deposit agreement, warrant agreement or rights agreement, as
applicable.
This opinion letter is based as to matters of law solely on (i)
the General Corporation Law of the State of Maryland, (ii) the law of the
Commonwealth of Massachusetts applicable to Massachusetts business trusts and
(iii) New York contract law (but not including any statutes, ordinances,
administrative decisions, rules or regulations of any political subdivision
of the State of New York), and we express no opinion herein as to any other
laws, statutes, ordinances, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
1. The Debt Securities (including any Debt Securities duly issued
upon the exercise of Debt Warrants), when duly executed and
authenticated in accordance with the indenture relating thereto and
delivered on behalf of the Company, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms
and entitled to the benefits of such indenture.
2. The Preferred Shares (including any Preferred Shares duly
issued upon the exercise of Warrants, or represented by Depositary
Shares), when certificates therefor have been executed and delivered on
behalf of the Company, will be validly issued, fully paid and
non-assessable.
3. The depositary receipts evidencing the Depositary Shares
(including any Depositary Shares duly issued upon the exercise of
Warrants), when duly countersigned and issued against deposit of such
shares of preferred stock in accordance with the deposit agreement
relating thereto, will entitle the holders thereof to the rights
specified in such depositary receipts and deposit agreement.
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Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 6
4. The Common Shares (including any Common Shares duly issued
upon the exchange or conversion of Debt Securities or Preferred Shares
that are exchangeable for or convertible into Common Shares or upon the
exercise of Warrants or Rights), when certificates therefor have been
executed and delivered on behalf of the Company, will be validly issued,
fully paid and non-assessable.
5. The Debt Warrants, upon due execution and delivery of a
debt warrant agreement relating thereto, when duly executed and
delivered on behalf of the Company and countersigned by the warrant
agent, will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms.
6. The Equity Warrants, upon due execution and delivery of an
equity warrant agreement relating thereto, when duly executed and
delivered on behalf of the Company and countersigned by the warrant
agent, will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms.
7. The Rights, upon due execution and delivery of a rights
agreement relating thereto, when duly executed and delivered on behalf
of the Company and countersigned by the rights agent, will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms.
8. The Debt Guarantees, when duly executed and delivered on
behalf of the Trust, will constitute valid and binding obligations of
the Trust, enforceable in accordance with their terms.
The opinions expressed in Paragraphs (1), (3), (5), (6), (7), and
(8) above with respect to the enforceability of obligations may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and by the exercise of judicial discretion and the
application of principles of equity, including, without limitation,
requirements of good faith, fair dealing, conscionability and materiality
(regardless of whether the Securities are considered in a proceeding in
equity or at law). Such opinions shall be understood to mean only that if
there is a default in performance of an obligation, (i) if a failure to pay
or other damage can be shown and (ii) if the defaulting party can be brought
into a court which will hear the case and apply the governing law, then,
subject to the availability of defenses
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Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
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and to the exceptions set forth in the previous sentence, the court will provide
a money damage (or perhaps injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion
letter has been prepared solely for your use in connection with the filing of
the Registration Statement on the date of this opinion letter and should not
be quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to this firm under
the caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement.
In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Act.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.