Attached files
file | filename |
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8-K - Education Realty Trust, Inc. | v207116_8k.htm |
EX-5.1 - Education Realty Trust, Inc. | v207116_ex5-1.htm |
EX-1.1 - Education Realty Trust, Inc. | v207116_ex1-1.htm |
EX-99.1 - Education Realty Trust, Inc. | v207116_ex99-1.htm |
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Exhibit
8.1
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The
Tower at Peabody Place
100
Peabody Place, Suite 900
Memphis,
TN 38103-3672
(901)
543-5900
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January 5, 2011
Education
Realty Trust, Inc.
530 Oak
Court, Suite 300
Memphis,
TN 38117
Re: Education Realty Trust, Inc.’s
Qualification as a Real Estate Investment Trust
Ladies
and Gentlemen:
We have acted as counsel to Education
Realty Trust, Inc., a Maryland corporation (“EDR”), in
connection with the offer and sale of up to 13,225,000 shares of common stock
(including 1,725,000 shares of common stock subject to an overallotment option),
$.01 par value per share, of EDR pursuant to a prospectus supplement filed on
January 5, 2011 (the “Prospectus
Supplement”) as part of a registration statement on Form S-3, File No.
333-161493 (the “Registration
Statement”) which contains the base prospectus (the “Prospectus”). You
have requested our opinion regarding certain U.S. federal income tax
matters.
In connection with this opinion, we
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documentation and information provided by EDR as we have
deemed necessary or appropriate as a basis for the opinion set forth
herein. In addition, EDR has provided us with, and we are relying
upon, a certificate containing certain factual representations and covenants of
a duly authorized officer of EDR (the “Officer’s
Certificate”) relating to, among other things, the actual and proposed
operations of EDR, Education Realty Operating Partnership, L.P., a Delaware
limited partnership (the “Operating
Partnership”) and the entities in which either holds, or has held, a
direct or indirect interest (collectively, the “Company”).
For purposes of this opinion, we have
not independently verified the facts, statements, representations and covenants
set forth in the Officer’s Certificate or in any other document. In
particular, we note that the Company has engaged in, and may engage in,
transactions in connection with which we have not provided legal advice, and
have not reviewed, and of which we may be unaware. Consequently, we
have relied on EDR’s representations that the facts, statements, representations
and covenants presented in the Officer’s Certificate and other documents, or
otherwise furnished to us, accurately and completely describe all material facts
relevant to our opinion. We have assumed that all such facts,
statements, representations and covenants are true without regard to any
qualification as to knowledge, belief or intent. Our opinion is
conditioned on the continuing accuracy and completeness of such facts,
statements, representations and covenants. Any material change or
inaccuracy in the facts, statements, representations and covenants referred to,
set forth, or assumed herein or in the Officer’s Certificate may affect our
conclusions set forth herein.
bassberry.com
Education
Realty Trust, Inc.
January
5, 2011
Page 2
In our review of certain documents in
connection with our opinion as expressed below, we have assumed that each of the
documents has been duly authorized, executed and delivered; is
authentic, if an original, or is accurate, if a copy; and has not been amended
subsequent to our review. Where documents have been provided to us in
draft form, we have assumed that the final executed versions of such documents
will not differ materially from such drafts.
Our opinion also is based on the
correctness of the following assumptions: (i) EDR, the Operating Partnership and
each of the other entities comprising the Company have been and will continue to
be operated in accordance with the laws of the jurisdictions in which they were
formed and in the manner described in the relevant organizational documents,
(ii) there will be no changes in the applicable laws of the State of Maryland or
of any other jurisdiction under the laws of which any of the entities comprising
the Company have been formed and (iii) each of the written agreements to which
the Company is a party will be implemented, construed and enforced in accordance
with its terms.
In rendering our opinion, we have
considered and relied upon the Internal Revenue Code of 1986, as amended (the
“Code”),
the regulations promulgated thereunder (the “Regulations”),
administrative rulings and other interpretations of the Code and the Regulations
by the courts and the Internal Revenue Service (“IRS”), all
as they exist at the date hereof. It should be noted that the Code,
Regulations, judicial decisions, and administrative interpretations are subject
to change at any time and, in some circumstances, with retroactive
effect. A material change that is made after the date hereof in any
of the foregoing bases for our opinion could affect our conclusions set forth
herein. In this regard, an opinion of counsel with respect to an
issue represents counsel’s best judgment as to the outcome on the merits with
respect to such issue, 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 if asserted by the
IRS.
We express no opinion as to the laws of
any jurisdiction other than the federal laws of the United States of America to
the extent specifically referred to herein. In addition, we express
no opinion on any issue relating to EDR, other than as expressly stated
below.
Based on the foregoing and subject to
the other qualifications and limitations included herein, we are of the opinion
that:
1. Commencing
with EDR’s taxable year ended December 31, 2007 and through EDR’s taxable year
ended December 31, 2009, EDR has been organized and has operated in conformity
with the requirements for qualification and taxation as a real estate investment
trust under the Code (a “REIT”),
and its organization and proposed method of operation will enable it to continue
to meet the requirements for qualification and taxation as a REIT for its
taxable year ended December 31, 2010 and thereafter. EDR’s continued
qualification and taxation as a REIT depend upon its ability to meet, through
actual annual operating results, certain requirements relating to the sources of
its income, the nature of its assets, its distribution levels, the diversity of
its stock ownership and various other qualification tests imposed under the
Code, the results of which are not reviewed by us. Accordingly, no
assurance can be given that the actual results of EDR’s operations for any one
taxable year will satisfy the requirements for taxation as a REIT under the
Code.
Education
Realty Trust, Inc.
January
5, 2011
Page 3
2. The
statements contained in the Prospectus under the caption “Federal Income Tax
Consequences of Our Status as a REIT” and in the Prospectus Supplement under the
caption “Additional Federal Income Tax Considerations” insofar as such
statements purport to summarize certain provisions of the United States federal
income tax law and regulations or legal conclusions with respect thereto, fairly
and accurately summarize such provisions in all material respects.
This opinion is expressed as of the
date hereof, and we are under no obligation to supplement or revise our opinion
to reflect any legal developments or factual matters arising subsequent to the
date hereof, or the impact of any information, document, certificate, record,
statement, representation, covenant, or assumption relied upon herein that
becomes incorrect or untrue. We will not review on a continuing basis
the Company’s compliance with the documents or assumptions set forth above, or
the representations set forth in the Officer’s
Certificate. 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 and taxation as a REIT.
The foregoing opinion is based on
current provisions of the Code and the Regulations, published administrative
interpretations thereof, and published court decisions. The IRS has not issued
Regulations or administrative interpretations with respect to various provisions
of the Code relating to REIT qualification and taxation. No assurance
can be given that the law will not change in a way that will prevent EDR from
qualifying as a REIT.
The foregoing opinion is limited to the
U.S. federal income tax matters addressed herein, and no other opinion is
rendered with respect to other federal tax matters or to any issues arising
under the tax laws of any other country, or any state or
locality. This opinion letter is solely for the information and use
of the addressee, and it speaks only as of the date hereof. We
undertake no obligation to update any opinion expressed herein after the date of
this letter. This opinion letter may not be distributed, relied upon
for any purpose by any other person, 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 an exhibit to the Registration Statement. We also
consent to the references to Bass, Berry & Sims PLC under the captions
“Additional Federal Income Tax Considerations” and “Legal Matters” in the
Prospectus Supplement. In giving this consent, we do not admit that
we are in the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder by the SEC.
Sincerely,
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/s/
Bass, Berry & Sims
PLC
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