Attached files
file | filename |
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8-K - FORM 8-K - FIRST POTOMAC REALTY TRUST | c22132e8vk.htm |
EX-5.1 - EXHIBIT 5.1 - FIRST POTOMAC REALTY TRUST | c22132exv5w1.htm |
EX-1.1 - EXHIBIT 1.1 - FIRST POTOMAC REALTY TRUST | c22132exv1w1.htm |
Exhibit 8.1
[Hogan Lovells US LLP Letterhead]
September 2, 2011
Board of Trustees
First Potomac Realty Trust
7600 Wisconsin Avenue, 11th Floor
Bethesda, Maryland 20814
First Potomac Realty Trust
7600 Wisconsin Avenue, 11th Floor
Bethesda, Maryland 20814
Ladies and Gentlemen:
We are acting as tax counsel to First Potomac Realty Trust, a Maryland real estate investment
trust (the Company) and First Potomac Realty Investment Limited Partnership, a Delaware limited
partnership and the Companys operating partnership (the Operating Partnership), in connection
with the public offering of up to 5,243,900 of the Companys common shares of beneficial interest,
par value $0.001 per share (the Shares), all of which Shares are to be offered and sold by the
Company from time to time in accordance with the terms of the Second Amended and Restated Sales
Agreement, dated September 2, 2011, among the Company, the Operating Partnership and Cantor
Fitzgerald & Co. (the Sales Agreement), and as described in the prospectus supplement dated
September 2, 2011 (the Prospectus Supplement) and the accompanying prospectus dated July 1, 2011
(together with the Prospectus Supplement, collectively, the Prospectus) that form part of the
Companys effective registration statement on Form S-3, as amended (File No. 333-175330) (the
Registration Statement). In connection with the filing of a Current Report on Form 8-K relating
to the offer and sale of the Shares (the Form 8-K), which Form 8-K will be incorporated by
reference into the Registration Statement and Prospectus we have been asked to provide you with
legal opinions regarding the U.S. federal income tax matters specifically set forth below under the
caption titled Opinions.
Bases for Opinions
The opinions set forth in this letter are based on relevant current provisions of the Internal
Revenue Code of 1986, as amended (the Code), Treasury Regulations thereunder (including proposed
and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court
decisions, applicable legislative history, and the administrative rulings and practices of the
Internal Revenue Service (the IRS), including its practices and policies in issuing private
letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives
such a ruling, all as of the date hereof. These provisions and interpretations are subject to
change by the IRS, Congress and the courts (as applicable), which may or may not be retroactive in
effect and which might result in material modifications of our opinions. Our opinions do not
foreclose the possibility of a contrary determination by the IRS or a court of competent
jurisdiction, or of a contrary position taken by the IRS or the Treasury Department in regulations
or rulings issued in the
future. In this regard, an opinion of counsel with respect to an issue represents counsels best
professional judgment with respect to the outcome on the merits with respect to such issue, if such
issue were to be litigated, but an opinion is not binding on the IRS or the courts, and is not a
guarantee that the IRS will not assert a contrary position with respect to such issue or that a
court will not sustain such a position asserted by the IRS.
Board of Trustees
First Potomac Realty Trust
September 2, 2011
First Potomac Realty Trust
September 2, 2011
In rendering the following opinions, we have examined such statutes, regulations, records,
agreements, certificates and other documents as we have considered
necessary or appropriate as a
basis for the opinions, including, but not limited to (1) the Registration Statement and (2)
certain organizational documents of the Company and certain of its subsidiaries (those documents
referred to in clauses (1) and (2), the Reviewed Documents).
The opinions set forth in this letter are premised on, among other things, the written
representations of the Company and the Operating Partnership contained in a letter to us dated as
of the date hereof (the Management Representation Letter). Although we have discussed the
Management Representation Letter with the Company we have not made an independent investigation or
audit of the facts set forth in the Reviewed Documents and the Management Representation Letter.
We consequently have relied upon the representations and statements of the Company as described in
the Reviewed Documents and the Management Representation Letter, and assumed that the information
presented in such documents or otherwise furnished to us is accurate and complete in all material
respects.
In this regard, we have assumed with your consent the following:
(1) that (A) all of the representations and statements as to factual matters set forth in the
Reviewed Documents and the Management Representation Letter are true, correct, and complete as of
the date hereof, (B) any representation or statement in the Reviewed Documents and the Management
Representation Letter made as a belief or made to the knowledge of or similarly qualified is
true, correct and complete as of the date hereof, without such qualification, (C) each agreement
described in the Reviewed Documents is valid and binding in accordance with its terms, and (D) each
of the obligations of the Company, and its subsidiaries, as described in the Reviewed Documents,
has been or will be performed or satisfied in accordance with its terms;
(2) the genuineness of all signatures, the proper execution of all documents, the authenticity
of all documents submitted to us as originals, the conformity to originals of documents submitted
to us as copies, and the authenticity of the originals from which any copies were made;
(3) that any documents as to which we have reviewed only a form were or will be duly executed
without material changes from the form reviewed by us; and
(4) from and after the date of this letter, the Company will comply with its representation
contained in the Management Representation Letter that it will utilize all appropriate savings
provisions (including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code, and
the provision included in Section 856(c)(4) of the Code (flush language) allowing for the disposal
of assets within 30 days after the close of a calendar quarter, and all available deficiency
dividend procedures) available to the Company under the Code in order to correct any violations of
the applicable REIT qualification requirements of Sections 856 and 857 of the Code, to the full
extent the remedies under such provisions are available, but only to the extent available.
Any material variation or difference in the facts from those set forth in the documents that
we have reviewed and upon which we have relied (including, in particular, the Management
Representation Letter) may adversely affect the conclusions stated herein.
Board of Trustees
First Potomac Realty Trust
September 2, 2011
First Potomac Realty Trust
September 2, 2011
Opinions
Based upon and subject to the assumptions and qualifications set forth herein, including,
without limitation, the discussion in the next two paragraphs below, we are of the opinion that:
(1) for the taxable years ended December 31, 2006 through December 31, 2010, the Company has
been organized and has operated in conformity with the requirements for qualification as a REIT
under the Code, and the Companys current organization and current and proposed method of operation
(as described in the Registration Statement and the Management Representation Letter) will enable
it to meet the requirements for qualification as a REIT under the Code for its taxable year ending
December 31, 2011, and for future taxable years; and
(2) the portions of the discussion under the caption Material U.S. Federal Income Tax
Consequences included in the Registration Statement that describe applicable U.S. federal income
tax law are correct in all material respects as of the date hereof.
The Companys qualification and taxation as a REIT under the Code will depend upon the ability
of the Company to meet on an ongoing basis (through actual quarterly and annual operating results,
distribution levels, diversity of stock ownership and otherwise) the various qualification tests
imposed under the Code, and upon the Company utilizing any and all appropriate savings provisions
(including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code and the
provision included in Section 856(c)(4) of the Code (flush language) allowing for the disposal of
assets within 30 days after the close of a calendar quarter, and all available deficiency dividend
procedures) available to the Company under the Code to correct violations of specified REIT
qualification requirements of Sections 856 and 857 of the Code. Our opinions set forth above do
not foreclose the possibility that the Company may have to utilize one or more of these savings
provisions in the future, which could require the Company to pay an excise or penalty tax (which
could be significant in amount) in order to maintain its REIT qualification. We have not
undertaken to review the Companys compliance with these requirements on a continuing basis.
Accordingly, no assurance can be given that the actual results of the Companys operations, the
sources of its income, the nature of its assets, the level of its distributions to stockholders and
the diversity of its stock ownership for any given taxable year will satisfy the requirements under
the Code for qualification and taxation as a REIT.
In order to qualify as a REIT, 75% of the Companys total assets must be comprised of real
estate assets (as that term is used for purposes of Section 856(c) of the Code) and limited other
assets specified in the Code as of the close of each calendar quarter of each taxable year of
the Company, including the taxable year ending December 31, 2011, and at least 75% of the Companys
gross income for any taxable year for which it seeks to qualify as a REIT must be derived from
certain specified real estate sources, including qualifying rents from real property. The
Companys ability to comply with this requirement is entirely dependent on the Company acquiring
and owning (for U.S. federal income tax purposes) on the relevant dates real estate assets with
an aggregate value equal to, or in excess of, 75% of its total assets and owning throughout the
relevant taxable year assets that will produce sufficient real estate gross income to satisfy the
75% gross income test. The value of the assets that the Company will own at the end of any future
calendar quarter, cannot be known with certainty as of the date hereof. Similarly, the gross
income that the Companys assets will produce for 2011 (or future years), and the nature of that
income, cannot be known with certainty as of the date hereof. We have not reviewed any assets that
will be owned by the Company at the close of any future calendar quarter, nor have we reviewed any
sources of the Companys gross income for the taxable year ending December 31, 2011 or for any
future taxable year. Accordingly, the accuracy of our opinions are entirely dependent on the
Companys representations contained in the Management Representation Letter regarding the
anticipated value and composition of assets that it may acquire, and the nature of income derived
therefrom.
This opinion letter addresses only the specific U.S. federal income tax matters set forth
above and does not address any other federal, state, local or foreign legal or tax issues.
Board of Trustees
First Potomac Realty Trust
September 2, 2011
First Potomac Realty Trust
September 2, 2011
This opinion letter has been prepared for your use in connection with the filing the Form 8-K.
We assume no obligation by reason of this opinion letter or otherwise to advise you of any changes
in our opinions subsequent to the delivery of this letter. Except as provided in the next
paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise
reproduced in any document, or filed with any governmental agency without our express written
consent.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Form 8-K and to
the reference to Hogan Lovells US LLP under the caption Legal Matters in the Prospectus
Supplement. In giving this consent, however, we do not admit thereby that we are an expert
within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP