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Exhibit 5.2
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
June 30,
2004
Mack-Cali
Realty Corporation
11 Commerce Drive
Cranford, New Jersey 07016
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Re: |
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Mack-Cali Realty Corporation (the "Company") and Mack-Cali Realty,
L.P., a Delaware limited partnership (the "Operating Partnership")
Registration Statement on Form S-3 pertaining to $2,500,000,000
maximum aggregate initial offering price of (i) shares of common stock of
the Company, par value $.01 per share ("Common Stock"); (ii) shares of
preferred stock of the Company, par value $.01 per share ("Preferred
Stock"); (iii) shares of Preferred Stock represented by Depositary Shares
("Depositary Shares"); (iv) warrants to purchase shares of Common Stock
or shares of Preferred Stock ("Warrants"); and (v) debt securities of the
Operating Partnership ("Debt Securities")
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Ladies
and Gentlemen:
We
have acted as Maryland corporate counsel to the Company acting in its own capacity and in its capacity as the sole general partner of the Operating Partnership in connection with the
registration of shares of Common Stock, shares of Preferred Stock, Depositary Shares, Warrants and the Debt Securities (each a "Security" and collectively, the "Securities") by the Company and the
Operating Partnership under the Securities Act of 1933, as amended (the "Act"), pursuant to a Registration Statement on Form S-3 filed or to be filed with the Securities and
Exchange Commission (the "Commission") on or about June 30, 2004 (the "Registration Statement"). You have requested our opinion with respect to the matters set forth below.
In
our capacity as Maryland corporate counsel to the Company in its own capacity and in its capacity as general partner of the Operating Partnership and for the purposes of this opinion,
we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the "Documents"):
- (i)
- the
charter of the Company (the "Charter") represented by Articles of Incorporation filed with the State Department of Assessments and Taxation of Maryland (the
"Department") on May 24, 1994, Articles of Amendment and Restatement filed with the Department on July 28, 1994, Articles of Amendment and Restatement filed with the Department on
August 9, 1994, Articles of Amendment filed with the Department on May 31, 1996, Articles of Amendment filed with the Department on June 13, 1997, Articles of Amendment filed with
the Department on December 11, 1997, Articles of Amendment filed with the Department on May 22, 1998, Certificate of Correction filed with the Department on June 3, 1999, Articles
of Restatement filed with the Department on June 11, 1999, Articles Supplementary filed with the Department on June 11, 1999, Articles Supplementary filed with the Department on
July 2, 1999, Articles of Amendment filed with the Department on May 15, 2001, Articles of Restatement filed with the Department on June 13, 2001 and Articles Supplementary filed
with the Department on March 13, 2003;
- (ii)
- the
Amended and Restated Bylaws of the Company, which were adopted on June 10, 1999 (the "Amended and Restated Bylaws"), and Amendment No. 1 to the
Amended and Restated Bylaws of the Company, as adopted on March 4, 2003 ("Amendment No. 1" and together with the Amended and Restated Bylaws, the "Bylaws");
- (iii)
- the
Organizational Action of the Board of Directors of the Company, dated May 25, 1994 (the "Organizational Minutes");
- (iv)
- resolutions
adopted by the Board of Directors of the Company on June 9, 2004 (the "Directors' Resolutions");
- (v)
- the
Registration Statement and the related form of prospectus included therein, in substantially the form to be filed with the Commission pursuant to the Act;
- (vi)
- The
Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated December 11, 1997, between the Company and the limited
partners named therein, as amended (the "Operating Partnership Agreement");
- (vii)
- a
status certificate of the Department, dated as of a recent date, to the effect that the Company is duly incorporated and existing under the laws of the State of
Maryland;
- (viii)
- a
certificate of Barry Lefkowitz, Executive Vice President and Chief Financial Officer of the Company, and Roger W. Thomas, Executive Vice President, General Counsel
and Secretary of the Company, as of a recent date herewith (the "Officers' Certificate"), to the effect that, among other things, the Charter, the Bylaws, the Organizational Minutes and the Directors'
Resolutions are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officers' Certificate; and
- (ix)
- such
other documents and matters as we have deemed necessary and appropriate to render the opinions set forth in this letter, subject to the limitations, assumptions,
and qualifications noted below.
In
reaching the opinions set forth below, we have assumed the following:
- (a)
- each
person executing any of the Documents on behalf of any party (other than the Company) is duly authorized to do so;
- (b)
- each
natural person executing any of the Documents is legally competent to do so;
- (c)
- any
of the Documents submitted to us as originals are authentic; the form and content of any Documents submitted to us as unexecuted drafts do not differ in any respect relevant to
this opinion from the form and content of such documents as executed and delivered; any of the Documents submitted to us as certified, facsimile or photostatic copies conform to the original
documents; all signatures on all of the 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 modification of, or amendment to, any of the Documents, and there has been no waiver of any provision of any of the Documents by action or omission
of the parties or otherwise;
- (d)
- the
resolutions to be adopted subsequent to the date hereof, and the actions to be taken by the Board of Directors subsequent to the date hereof, including, but not limited to, the
adoption of all resolutions and the taking of all action necessary to authorize the issuance and sale of the Securities in accordance with the procedures set forth in Paragraphs (1), (2), (3),
(4) and (5) below, will occur at duly called meetings at which a quorum of the incumbent directors of the Company is present and acting throughout, or by unanimous written consent of all
incumbent directors, all in accordance with the Charter and Bylaws of the Company and applicable law;
- (e)
- the
number of shares of Preferred Stock and the number of shares of Common Stock to be offered and sold subsequent to the date hereof as Securities under the Registration Statement,
together with the number of shares of Preferred Stock and the number of shares of Common Stock issuable upon the conversion or exchange of any Securities or the exercise of the
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Warrants
offered and sold subsequent to the date hereof, will not, in the aggregate, exceed the number of shares of Preferred Stock, and the number of shares of Common Stock, respectively, authorized
in the Charter of the Company, less the number of shares of Preferred Stock and the number of shares of Common Stock, respectively, authorized and reserved for issuance and/or issued and outstanding
on the date subsequent to the date hereof on which the Securities are authorized, the date subsequent to the date hereof on which the Securities are issued and delivered, the date subsequent to the
date hereof on which the Warrants are exercised and the date subsequent to the date hereof on which shares of Preferred Stock and shares of Common Stock, respectively, are issued pursuant to the
conversion or exchange of any Securities or the exercise of Warrants;
- (f)
- none
of the terms of any of the Securities or any agreements related thereto to be established subsequent to the date hereof, nor the issuance or delivery of any such Securities
containing such terms established subsequent to the date hereof, nor the compliance by the Company with the terms of any such Securities or agreements established subsequent to the date hereof will
violate any applicable law or will conflict with, or result in a breach or violation of, the Charter or Bylaws of the Company, or any instrument or agreement to which the Company is a party or by
which the Company is bound or any order or decree of any court, administrative or governmental body having jurisdiction over the Company;
- (g)
- the
form of certificate or other instrument or document representing the Securities approved subsequent to the date hereof will conform in all respects to the requirements applicable
under Maryland law;
- (h)
- The
corporate action required to be taken by the Company as general partner of the Operating Partnership in authorizing actions in its capacity as general partner of the Operating
Partnership is the same as that which would be required to be taken had the Operating Partnership been organized as a limited partnership under the laws of the State of Maryland, instead of the State
of Delaware, with the Company as its sole general partner and with no restrictions under the governing documents of the Operating Partnership on the power or authority of the general partner to act on
its behalf;
- (i)
- none
of the Securities to be offered and sold subsequent to the date hereof, and none of the shares of Preferred Stock or shares of Common Stock issuable upon the conversion or
exchange of any such Securities, will be issued or transferred in violation of the provisions of Article VI, Section 2 of the Charter of the Company relating to restrictions on ownership
and transfer of shares of stock of the Company; and
- (j)
- none
of the Securities to be offered and sold subsequent to the date hereof, and none of the shares of Preferred Stock or shares of Common Stock issuable upon the conversion or
exchange of any such Securities, will be issued and sold to an Interested Stockholder of the Company or an Affiliate thereof, all as defined in Subtitle 6 of Title 3 of the Maryland General
Corporation Law (the "MGCL"), in violation of Section 3-602 of the MGCL.
Based
on our review of the foregoing and subject to the assumptions and qualifications set forth herein, it is our opinion that, as of the date of this letter:
- (1)
- Upon
due authorization by the Board of Directors of a designated number of shares of Common Stock for issuance at a minimum price or value of consideration to be set by the Board of
Directors, all necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of such shares of Common Stock, and when such Common Shares are issued and
delivered against payment of the consideration therefor as set by the Board of Directors, such shares of Common Stock will be validly issued, fully paid and non-assessable.
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- (2)
- Upon:
(a) designation by the Board of Directors of one or more series of Preferred Stock to distinguish each such series from any other series of Preferred Stock issued and
outstanding or classified but not yet issued; (b) setting by the Board of Directors of the number of shares of Preferred Stock to be included in each such series; (c) establishment by
the Board of Directors of the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of each such
series of Preferred Stock; (d) filing by the Company with the Department of articles supplementary setting forth a description of each such series of Preferred Stock, including the preferences,
conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption as set by the Board of Directors and a statement that such
series of the Preferred Stock has been classified by the Board of Directors under the authority contained in the Charter, and the acceptance for record by the Department of such articles
supplementary; (e) due authorization by the Board of Directors of a designated number of shares of such series of Preferred Stock for issuance at a minimum price or value of consideration to be
set by the Board of Directors, and (f) reservation and due authorization by the Board of Directors of any shares of any other series of Preferred Stock and/or any shares of Common Stock
issuable upon conversion of such series of Preferred Stock in accordance with the procedures set forth in this Paragraph (2) and in Paragraph (1) above, respectively, all necessary
corporate action on the part of the Company will have been taken to authorize the issuance and sale of the shares of such series of Preferred Stock and when such shares of such series of Preferred
Stock are issued and delivered against payment of the consideration therefor as set by the Board of Directors, such shares of such series of Preferred Stock will be validly issued, fully paid and
non-assessable.
- (3)
- The
Company has the corporate power to enter into deposit agreements relating to the Depositary Shares and, upon completion of the procedures set forth in Paragraph (2) above
for the issuance of the shares of Preferred Stock to be represented by the Depositary Shares, issuance and delivery of such shares of Preferred Stock against payment of the consideration therefore,
due authorization and approval by the Board of Directors of a deposit agreement, delivery of Depositary Shares pursuant to such deposit agreement, and compliance with the conditions established by the
Board of Directors for the delivery of the Depositary Shares, such Depositary Shares may be delivered by or on behalf of the Company, and the shares of Preferred Stock represented by the Depositary
Shares will be validly issued, fully paid and non-assessable.
- (4)
- Upon:
(a) designation and titling by the Board of Directors of the Warrants; (b) due authorization by the Board of Directors of the execution and delivery by the Company
of a warrant agreement relating to the Warrants; (c) setting by the Board of Directors of the number of Warrants to be issued; (d) establishment by the Board of Directors of the terms,
conditions and provisions of the Warrants; (e) due authorization by the Board of Directors of the Warrants for issuance at a minimum price or value of consideration to be set by the Board of
Directors; and (f) reservation and due authorization by the Board of Directors of the shares of Common Stock, shares of Preferred Stock or Debt Securities of the Company issuable upon exercise
of such Warrants in accordance with the procedures set forth in Paragraphs (1) and (2) above, at a minimum price or value of consideration to be set by the Board of Directors, all
necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of the Warrants.
- (5)
- Upon:
(a) designation and titling of the Debt Securities by the Board of Directors of the Company acting in the Company's capacity as general partner of the Operating
Partnership; (b) establishment of the terms, conditions and provisions of the Debt Securities by the Board
4
of
Directors of the Company acting in the Company's capacity as general partner of the Operating Partnership; (c) establishment of the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount by the Board of Directors of the Company acting in the Company's capacity as general partner of the Operating Partnership; (d) due authorization by the
Board of Directors of the Company acting in the Company's capacity as general partner of the Operating Partnership of the form, terms, execution and delivery of an indenture, and one or more
supplemental indentures each dated as of the date prior to the issuance of the Debt Securities to which it relates; (e) due authorization by the Board of Directors of the Company acting in the
Company's capacity as general partner of the Operating Partnership of such Debt Securities for issuance, execution and delivery in exchange for a minimum price or value of consideration to be set by
the Board of Directors; and (f) reservation and due authorization by the Board of Directors of the Company acting in the Company's capacity as general partner of the Operating Partnership of
the issuance of any Preferred Stock and/or any Common Stock issuable upon conversion of the Debt Securities in accordance with the procedures set forth in Paragraphs (1) and (2) above,
at a minimum price or value of consideration to be set by the Board of Directors of the Company in the Company's capacity as general partner of the Operating Partnership, all necessary corporate
action on the part of the Company in its own capacity and in its capacity as general partner of the Operating Partnership will have been taken to authorize such Debt Securities.
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 the
applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent
that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
This
opinion letter is issued as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our attention. We
assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we become aware of any facts or circumstances that now exist or that occur or arise in
the future and may change the opinions expressed herein after the date hereof.
We
consent to your filing this opinion as an exhibit to the Registration Statement and further consent to the filing of this opinion as an exhibit to the applications to securities
commissioners for the various states of the United States for registration of the Securities. We also consent to the identification of our firm as Maryland counsel to the Company in the section of the
Registration Statement entitled "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.
We
also consent to reliance on this opinion by your securities counsel, Pryor Cashman Sherman & Flynn LLP, in connection with the filing of the Registration Statement and the
rendering of opinions by Pryor Cashman Sherman & Flynn LLP in connection therewith.
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Very truly yours, |
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BALLARD SPAHR ANDREWS & INGERSOLL, LLP
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[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]