DOC 8-K
Healthpeak Properties, Inc. (DOC)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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| Item 1.01 | Entry Into a Material Definitive Agreement |
On March 11, 2024, Healthpeak Properties, Inc., a Maryland corporation (the “Company”), and Healthpeak OP, LLC, a Maryland limited liability company (the “operating company”), entered into an amendment (the “Amendment”) to the “at-the market” equity offering sales agreement (the “Sales Agreement”) with each of J.P. Morgan Securities LLC, Robert W. Baird & Co. Incorporated, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC, each as sales agent and principal (except in the case of Nomura Securities International, Inc.) and forward seller (except in the case of BTIG, LLC and Capital One Securities, Inc.), from time to time (in such capacity, each an “Agent” and, collectively, the “Agents”) in each case as described below, and the Forward Purchasers (as defined below), relating to (i) the issuance and sale by the Company to or through the Sales Agents, from time to time, of shares (the “Issuance Shares”) of the Company’s common stock, par value $1.00 per share (“Common Stock”), and (ii) the sale by the Forward Sellers, as agents on behalf of the Forward Purchasers, of Common Stock (together with the Issuance Shares, the “Securities”). We refer to these entities, when acting in their capacity as sales agents for the Company, individually as a “Sales Agent” and collectively as the “Sales Agents,” when acting in their capacity as counterparties to forward sale agreements, individually as a “Forward Purchaser” and collectively as the “Forward Purchasers,” and when acting in their capacity as agents for the Forward Purchasers, individually as a “Forward Seller” and collectively as the “Forward Sellers.”
The purpose of the Amendment was to contemplate the sales of the remaining shares of Common Stock pursuant to the Sales Agreement pursuant to the Company’s new Registration Statement on Form S-3 (Registration Nos. 333-276954 and 333-276954-01) filed with the Securities and Exchange Commission (the “SEC”) on February 8, 2024. Pursuant to the Sales Agreement, shares of the Common Stock having an aggregate gross sales price of up to $1,500,000,000 may be offered and sold from time to time. No shares of the Company’s common stock have been offered and sold under the Sales Agreement as of the date hereof, therefore shares of the Company’s Common Stock having an aggregate gross sales price of up to $1,500,000,000 are available for offer and sale under the Sales Agreement. The foregoing description of the Amendment is qualified in its entirety by reference to the Amendment filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
In connection with the Amendment, the Company filed with the SEC a prospectus supplement (the “ATM Prospectus Supplement”), dated March 11, 2024, to its shelf registration statement on Form S-3 (Registration Nos. 333-276954 and 333-276954 -01), which was filed with the SEC and became effective on February 8, 2024, pursuant to Rule 424(b) under the Securities Act of 1933, as amended.
The Company is filing this Current Report on Form 8-K to provide the legal opinion of its counsel, Ballard Spahr LLP, regarding the legality of the Securities to be issued by the Company and covered by the ATM Prospectus Supplement, which opinion is attached hereto as Exhibit 5.1.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| No. | Description | ||
| 1.1 | Amendment No. 1 to At-the-Market Equity Offering Sales Agreement, dated March 11, 2024, among the Company, the operating company, the Sales Agents, the Forward Sellers and the Forward Purchasers | ||
| 5.1 | Opinion of Ballard Spahr LLP | ||
| 23.1 | Consent of Ballard Spahr LLP (included in Exhibit 5.1) | ||
| 104 | The cover page of this Current Report on Form 8-K, formatted in Inline XBRL | ||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Healthpeak Properties, Inc. | ||
| By: | /s/ Peter A. Scott | |
| Name: | Peter A. Scott | |
| Title: | Chief Financial Officer | |
| Date: March 11, 2024 | ||
Exhibit 1.1
Healthpeak Properties, Inc.
Common Stock
($1.00 par value)
AMENDMENT NO. 1 TO AT-THE-MARKET EQUITY OFFERING SALES AGREEMENT
March 11, 2024
J.P. Morgan Securities LLC
Barclays Capital Inc.
BNP Paribas Securities Corp.
BofA Securities, Inc.
BTIG, LLC
Capital One Securities, Inc.
Credit Agricole Securities (USA) Inc.
Goldman Sachs & Co. LLC
Jefferies LLC
Mizuho Securities USA LLC
Morgan Stanley & Co. LLC
Nomura Securities International, Inc. (as forward seller through BTIG, LLC)
RBC Capital Markets, LLC
Regions Securities LLC
Robert W. Baird & Co. Incorporated
Scotia Capital (USA) Inc.
TD Securities (USA) LLC
Truist Securities, Inc.
Wells Fargo Securities, LLC
As Agents
JPMorgan Chase Bank, National Association
Bank of America, N.A.
The Bank of Nova Scotia
Barclays Bank PLC
BNP Paribas
Crédit Agricole Corporate and Investment Bank
Goldman Sachs & Co. LLC
Jefferies LLC
Mizuho Markets Americas LLC
Morgan Stanley & Co. LLC
Nomura Global Financial Products, Inc.
Regions Securities LLC
Robert W. Baird & Co. Incorporated
Royal Bank of Canada
The Toronto-Dominion Bank
Truist Bank
Wells Fargo Bank, National Association
As Forward Purchasers
| c/o | J.P. Morgan Securities LLC |
| 383 Madison Avenue | |
| New York, New York 10179 |
Ladies and Gentlemen:
Reference is made to that certain At-the-Market Equity Offering Sales Agreement, dated February 17, 2023 (the “Sales Agreement”), among J.P. Morgan Securities LLC, Barclays Capital Inc., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Robert W. Baird & Co. Incorporated, Scotia Capital (USA) Inc., SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC, each as sales agent, principal and, in certain cases, forward seller (in any such capacity, each, an “Agent”, and collectively, the “Agents”), and JPMorgan Chase Bank, National Association, Bank of America, N.A., The Bank of Nova Scotia, Barclays Bank PLC, Crédit Agricole Corporate and Investment Bank, Credit Suisse International, Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Regions Securities LLC, Royal Bank of Canada, SMBC Nikko Securities America, Inc., The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association, each as forward purchaser (in such capacity, each a “Forward Purchaser”, and collectively, the “Forward Purchasers”) and Healthpeak Properties, Inc., a Maryland corporation (the “Company”), and Healthpeak OP, LLC, a Maryland limited liability company (the “Operating Company”) with respect to the offering and sale from time to time by the Company to or through the Agents, of shares of its common stock, $1.00 par value, having an aggregate gross sales price of up to $1,500,000,000, in the manner and subject to the terms and conditions set forth in the Sales Agreement. All capitalized terms used in this Amendment No. 1 to the Sales Agreement (this “Amendment”) and not otherwise defined herein shall have the respective meanings assigned to such terms in the Sales Agreement. For the avoidance of doubt, all references to the Sales Agreement in any document related to the transactions contemplated by the Sales Agreement shall be to the Sales Agreement as amended by this Amendment. The Agents, the Forward Purchasers, the Company and the Operating Company (collectively, the “parties hereto”) agree as follows:
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| 1. | Amendments to Sales Agreement. The parties hereto agree that the Sales Agreement is amended as follows: |
| (a) | As contemplated by the Sales Agreement, from and after the date hereof, the term “Registration Statement” as used in the Sales Agreement, shall include the Company’s registration statement on Form S-3 (Nos. 333-276954 and 333-276954-01) filed with the Commission on February 8, 2024; and the term “Base Prospectus,” as used in the Sales Agreement, shall mean the base prospectus included in the Prospectus most recently filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act. |
| (b) | All references in the Sales Agreement to “Credit Suisse Securities (USA) LLC,” “Credit Suisse Capital LLC” and “SMBC Nikko Securities America, Inc.” (which entities have elected to terminate the Sales Agreement as to themselves), including their respective names and addresses appearing on pages 1 and 2 of the Sales Agreement, their respective names and addresses for notice appearing in Section 10 of the Sales Agreement and their respective names and signatures appearing on the signature pages of the Sales Agreement, shall be deleted, effective as of March 11, 2024, and effective as of March 11, 2024, neither Credit Suisse Securities (USA) LLC, Credit Suisse Capital LLC nor SMBC Nikko Securities America, Inc. shall be an Agent or Forward Purchaser under the Sales Agreement. |
| (c) | As of the date hereof, all references in the Sales Agreement to “JPMorgan Chase Bank, National Association, New York Branch” and “Regions Bank” shall refer to JPMorgan Chase Bank, National Association and Regions Securities LLC, respectively, including their respective names and addresses appearing on page 1 of the Sales Agreement, their respective names and addresses for notice appearing in Section 10 of the Sales Agreement and respective signatures appearing on the signature pages of the Sales Agreement. |
| (d) | As of the date hereof, the parties acknowledge and agree that, by virtue of this Amendment, the following entities have joined as parties to the Sales Agreement in the following capacities: (i) BNP Paribas Securities Corp. has joined as an Agent; (ii) BNP Paribas has joined as a Forward Purchaser (iii) Nomura Securities International, Inc. (as forward seller through BTIG, LLC as its agent) has joined as an Agent, solely in its capacity as forward seller; (iv) Nomura Global Financial Products, Inc. has joined as a Forward Purchaser; and (v) Robert W. Baird & Co. Incorporated has joined as a Forward Purchaser. The parties hereto, to the extent required by the Sales Agreement, consent to this Amendment and the transactions contemplated hereby (including the addition of the foregoing entities as parties to the Sales Agreement in their respective capacities). |
| (e) | As of the date hereof, the parties acknowledge and agree that, by virtue of this Amendment, the Company shall deliver any instruction or request that borrowed Shares be offered and sold through Nomura Securities International, Inc. to Nomura Securities International, Inc., BTIG, LLC and Nomura Global Financial Products, Inc. Such instruction or request shall only be effective if Nomura Securities International, Inc., BTIG, LLC and Nomura Global Financial Products, Inc. agree to the proposed terms, which any of them may accept, reject or propose new terms in their respective sole discretion. |
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| (f) | As of the date hereof, the first full paragraph of the Sales Agreement shall be deleted in its entirety and replaced with the following: |
“ Healthpeak Properties, Inc., a Maryland corporation (the “Company”) and Healthpeak OP, LLC, a Maryland limited liability company (the “Operating Company”), confirm their agreement with J.P. Morgan Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, Nomura Securities International, Inc. (as forward seller through BTIG, LLC as its agent), RBC Capital Markets, LLC, Regions Securities LLC, Robert W. Baird & Co. Incorporated, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC, each as sales agent, as principal (except in the case of Nomura Securities International, Inc.) and as forward seller (except in the case of BTIG, LLC) (in any such capacity, each, an “Agent”, and collectively, the “Agents”), and JPMorgan Chase Bank, National Association, Bank of America, N.A., The Bank of Nova Scotia, Barclays Bank PLC, BNP Paribas, Crédit Agricole Corporate and Investment Bank, Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Nomura Global Financial Products, Inc., Regions Securities LLC, Robert W. Baird & Co. Incorporated, Royal Bank of Canada, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association, each as forward purchaser (in such capacity, each a “Forward Purchaser”, and collectively, the “Forward Purchasers”). For purposes of clarity, it is understood and agreed by the parties hereto that, if Shares (as defined below) are offered or sold through any Agent, as forward seller, then such Agent shall be acting solely in its capacity as sales agent for the applicable Forward Purchaser and not as sales agent for the Company with respect to the offering and sale of such Shares, and, except in cases where this Agreement (as defined below) expressly refers to an Agent acting as sales agent for the Company or unless otherwise expressly stated or the context otherwise requires, references in this Agreement to any Agent acting as sales agent shall also be deemed to apply to such Agent as forward seller, mutatis mutandis, except that Nomura Securities International, Inc. shall only be a forward seller and shall therefore not act as sales agent for the Company. It is also understood and agreed by the parties hereto that, if Shares are offered or sold through any Agent, as sales agent for the Company, then such Agent shall be acting solely in its capacity as sales agent for the Company, and not as sales agent for any Forward Purchaser, with respect to the offering and sale of such Shares. For the avoidance of doubt, BTIG, LLC will not be a forward seller.”
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| (g) | As of the date hereof, Section 10 of the Sales Agreement shall be deleted in its entirety and replaced with the following: |
“Section 10. Notices. Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail, email or by fax, and any such notice shall be effective when received at the address specified below:
If to the Company or the Operating Company, to:
Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Jeffrey H. Miller
Email: [email protected]
With cc: [email protected]
With a copy (which shall not constitute notice) to:
Lewis W. Kneib, Esq.
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Century City, California 90067
Email: [email protected]
If to an Agent or Forward Purchaser, as applicable, delivered via fax or email with a confirmation copy mailed to the addresses set forth below:
J.P. Morgan Securities LLC 383 Madison Avenue, 6th Floor New York, New York 10179 Attention: Sanjeet Dewal Telephone: (212) 622-8783 Email: [email protected]
|
Morgan Stanley & Co. LLC 1585
Broadway
|
Barclays Capital Inc. 745 Seventh Avenue Facsimile: (646) 834-8133
|
Nomura Securities International, Inc. 309 West 49th Street New York, New York 10019 Attention: Structured Equity Solutions Email: [email protected] With a copy (which shall not constitute notice) to: Attention: Equities Legal Email: [email protected] And to: BTIG, LLC as agent of the forward seller, at the notice addresses provided for BTIG, LLC herein
|
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BNP Paribas Securities Corp. 787 Seventh Ave New York, New York 10019 Attention: Robert McDonald Phone: (212) 471-6840 Email: [email protected] |
RBC Capital Markets, LLC 200 Vesey Street, 8th Floor New York, New York 10281 Attention: Equity Capital Markets Facsimile: (212) 428-6260 |
BofA Securities, Inc. One Bryant Park New York, New York 10036 Attention: ATM Execution Team, email: [email protected] Facsimile: (646) 855-3073
|
Regions Securities LLC Charlotte, North Carolina 28202 Email: [email protected] |
BTIG, LLC 65 East 55th Street New York, New York 10022 Attention: ATM Trading Desk Email: [email protected] with a copy to [email protected]; [email protected]; and
|
Robert W. Baird & Co. Incorporated 777 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 Attention: Syndicate Department Facsimile: (414) 298-7474 With a copy to: Legal Department
|
Capital One Securities, Inc. 201 Charles Ave. Suite 1830 New Orleans, Louisiana 70170 Attention: Phil Winiecki Email: [email protected]
|
Scotia Capital (USA) Inc. 250 Vesey Street New York, New York 10281 Attention: Equity Capital Markets Facsimile: (212) 225-6653 Email: [email protected]
|
Credit Agricole Securities (USA) Inc. 1301 Avenue of the Americas New York, New York 10019 Attention: Douglas Cheng Email: [email protected]; Facsimile: (212) 261-2516
|
TD Securities (USA) LLC 1 Vanderbilt Avenue New York, New York 10017 Attention: Equity Capital Markets Email: [email protected] |
Goldman Sachs & Co. LLC 200 West Street New York, New York 10282-2198 Attention: Registration Department |
Truist Securities, Inc. 3333 Peachtree Road NE, 11th Floor Atlanta, Georgia 30326 Attention: Equity Capital Markets Email: [email protected]
|
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Jefferies LLC 520 Madison Avenue New York, New York 10022 Attention: General Counsel, with a copy to: [email protected]
|
Wells Fargo Securities, LLC 500 West 33rd Street New York, New York 10001 Attention: Equity Syndicate Department Facsimile: (212) 214-5918 |
Mizuho Securities USA LLC 1271 Avenue of the Americas New York, NY 10020 Attention: Stephen Roney; Ivana Rupcic-Hulin; Daniel Blake Telephone: (212) 205-7527 Email: [email protected]; [email protected]; [email protected], with a copy to: [email protected]
|
and
JPMorgan Chase Bank, National Association 383 Madison Avenue New York, New York 10179 Attention: EDG Marketing Support Email: [email protected] and [email protected] With a copy to: Attention: Sanjeet Dewal Telephone: (212) 622-8783 Email: [email protected]
|
Mizuho Markets Americas LLC c/o Mizuho Securities USA LLC, as agent 1271 Avenue of the Americas New York, NY 10020 Attention: US Equity Derivatives Notices Telephone: (646) 949-9531 Email: [email protected]
|
Bank of America, N.A. One Bryant Park New York, New York 10036 Attention: Rohan Handa Email: [email protected]
|
Morgan Stanley & Co. LLC 1585
Broadway
|
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The Bank of Nova Scotia 44 King Street West Toronto, Ontario, Canada M5H 1H1 c/o Scotia Capital (USA) Inc. 250 Vesey Street, 24th Floor New York, NY 10281 Attention: US Equity Derivatives Email: [email protected] / [email protected] Telephone No.: (212) 225-5230 / (212) 225-6664 And a copy to: [email protected] |
Nomura Global Financial Products, Inc. 309 West 49th Street New York, New York 10019 Attention: Structured Equity Solutions Email: [email protected] With a copy (which shall not constitute notice) to: Attention: Equities Legal Email: [email protected] And to: BTIG, LLC, at the notice addresses provided for BTIG, LLC herein
|
Barclays Bank PLC c/o Barclays Capital Inc. 745 Seventh Avenue New York, New York 10019 Attn: Ilya Blanter Email: [email protected]
|
Regions Securities LLC Charlotte, North Carolina 28202 Email: [email protected] |
BNP Paribas 787 Seventh Avenue New York, New York 10019 |
Robert W. Baird & Co. Incorporated 777 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 Attention: Syndicate Department Facsimile: (414) 298-7474 With a copy to: Legal Department
|
Crédit Agricole Corporate and Investment Bank c/o Credit Agricole Securities (USA) Inc., as agent 1301 Avenue of the Americas New York, New York 10019 Attention: Jonathan Fecowicz Email: [email protected]
|
Royal Bank of Canada 200 Vesey Street, 8th Floor New York, New York 10281 Attention: Equity Capital Markets Facsimile: (212) 428-6260
|
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Goldman Sachs & Co. LLC 200 West Street New York, New York 10282-2198 Attention: Registration Department, with a copy to
|
The Toronto-Dominion Bank c/o TD Securities (USA) LLC, as Agent 1 Vanderbilt Avenue New York, New York 10017 Attention: Global Equity Derivatives Phone: (212) 827-7306 Email: [email protected]; [email protected]; |
Jefferies LLC 520 Madison Avenue New York, New York 10022 Attention: Strategic Equity Transactions Group, with a copy to: [email protected] and [email protected] |
Truist Bank 3333 Peachtree Road NE, 11th Floor Atlanta, Georgia 30326 Attention: Equity Syndicate Department Email: [email protected], with a copy to [email protected]
|
Wells Fargo Bank, National Association 500 West 33rd Street New York, New York 10001 Attention: Equity Syndicate Department Facsimile: (212) 214-5918 |
With a copy (which shall not constitute notice) to:
Sharon R. Flanagan, Esq.
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, California 94104-1715
Email: [email protected]
and
J. Gerard Cummins, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Email: [email protected]
or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 10.”
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| (h) | As of the date hereof, Annex 1 to the Sales Agreement is hereby deleted in its entirety and replaced with Annex 1 attached hereto. |
| 2. | Prospectus Supplement. The Company agrees to file promptly with the Commission a supplement to the Prospectus to reflect the fact that Credit Suisse Securities (USA) LLC, Credit Suisse Capital LLC and SMBC Nikko Securities America, Inc. have ceased to be parties under the Sales Agreement and that BNP Paribas Securities Corp, BNP Paribas, Nomura Securities International, Inc. (as forward seller through BTIG, LLC as its agent), Nomura Global Financial Products, Inc. (as Forward Purchaser) and Robert W. Baird & Co. Incorporated (as a Forward Purchaser) have joined as parties to the Sales Agreement, agrees to provide such prospectus supplement to the other parties hereto and Sidley Austin LLP with a reasonable amount of time prior to the proposed filing thereof, and agrees not to file or use such prospectus supplement if any of the other parties hereto or Sidley Austin LLP shall reasonably object thereto. The parties hereto agree that such prospectus supplement shall be deemed to have been filed with the Commission in accordance with Section 3(c) of the Sales Agreement and that the term “Prospectus Supplement,” as used in the Agreement, shall be deemed to include such prospectus supplement. |
| 3. | No Other Amendments. The parties hereto agree that, except as set forth in, and amended by, Section 1 above, all the terms and provisions of the Sales Agreement shall remain in full force and effect. |
| 4. | Counterparts and Electronic Signature. This Amendment may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
| 5. | Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State. |
[Signature Pages Follow]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Operating Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Agents, the Forward Purchasers, the Company and the Operating Company in accordance with its terms.
| Very truly yours, | ||
| Healthpeak Properties, Inc. | ||
| By: | /s/ Peter A. Scott | |
| Name: | Peter A. Scott | |
| Title: | Chief Financial Officer | |
| Healthpeak OP, LLC | ||
| By: Healthpeak Properties, Inc., | ||
| its Managing Member | ||
| By: | /s/ Peter A. Scott | |
| Name: | Peter A. Scott | |
| Title: | Chief Financial Officer | |
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Accepted as of the date hereof:
J.P. Morgan Securities LLC
As Agent
| By: | /s/ Brett Chalmers | ||
| Name: | Brett Chalmers | ||
| Title: | Executive Director | ||
JPMorgan Chase Bank, National Association
As Forward Purchaser
| By: | /s/ Brett Chalmers | ||
| Name: | Brett Chalmers | ||
| Title: | Executive Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Barclays Capital Inc.
As Agent
| By: | /s/ Warren Fixmer | ||
| Name: | Warren Fixmer | ||
| Title: | Managing Director | ||
Barclays Bank PLC
As Forward Purchaser
| By: | /s/ Warren Fixmer | ||
| Name: | Warren Fixmer | ||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
BNP Paribas Securities Corp.
As Agent
| By: | /s/ Steve Nawrocki | ||
Name: |
Steve Nawrocki |
||
| Title: | Managing Director | ||
| By: | /s/ Robert McDonald | ||
Name: |
Robert McDonald |
||
| Title: | Managing Director | ||
BNP Paribas
As Forward Purchaser
| By: | /s/ Steve Nawrocki | ||
Name: |
Steve Nawrocki |
||
| Title: | Managing Director | ||
| By: | /s/ Robert McDonald | ||
Name: |
Robert McDonald |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
BofA Securities, Inc.
As Agent
| By: | /s/ Hicham Hamdouch | ||
Name: |
Hicham Hamdouch |
||
| Title: | Managing Director | ||
Bank of America, N.A.
As Forward Purchaser
| By: | /s/ Rohan Handa | ||
Name: |
Rohan Handa |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
BTIG, LLC
As Agent
| By: | /s/ Mike Passaro | ||
Name: |
Mike Passaro |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Capital One Securities, Inc.
As Agent
| By: | /s/ Michael Sleece | ||
Name: |
Michael Sleece |
||
| Title: | Senior Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Credit Agricole Securities (USA) Inc.
As Agent
| By: | /s/ Jean-Marc Nguyen | ||
Name: |
Jean-Marc Nguyen |
||
| Title: | Managing Director; Head of Investment Banking | ||
| By: | /s/ Douglas Cheng | ||
Name: |
Douglas Cheng |
||
| Title: | Managing Director | ||
Crédit Agricole Corporate and Investment Bank
As Forward Purchaser
By: Credit Agricole Securities (USA) Inc., as agent
| By: | /s/ Jean-Marc Nguyen | ||
Name: |
Jean-Marc Nguyen |
||
| Title: | Managing Director; Head of Investment Banking | ||
| By: | /s/ Douglas Cheng | ||
Name: |
Douglas Cheng |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Goldman Sachs & Co. LLC
As Agent and Forward Purchaser
| By: | /s/ Ryan Cunn | ||
Name: |
Ryan Cunn |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Jefferies LLC
As Agent and Forward Purchaser
| By: | /s/ Michael Magarro | ||
Name: |
Michael Magarro |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Mizuho Securities USA LLC
As Agent
| By: | /s/ Ivana Rupcic-Hulin | ||
Name: |
Ivana Rupcic-Hulin |
||
| Title: | Managing Director | ||
Mizuho Markets Americas LLC
As Forward Purchaser
| By: | /s/ Matthew E. Chiavaroli | ||
Name: |
Matthew E. Chiavaroli |
||
| Title: | Authorized Signatory | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Morgan Stanley & Co. LLC
As Agent and Forward Purchaser
| By: | /s/ Ethan Woo | ||
Name |
: Ethan Woo |
||
| Title: | Vice President | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Nomura Securities International, Inc.
As Agent (as forward seller)
| By: | /s/ Jason Eisenhauer | ||
Name: |
Jason Eisenhauer |
||
| Title: | Managing Director | ||
Nomura Global Financial Products, Inc.
As Forward Purchaser
| By: | /s/ Jeffrey Petillo | ||
Name: |
Jeffrey Petillo |
||
| Title: | Authorized Representative | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
RBC Capital Markets, LLC
As Agent
| By: | /s/ Asad Kazim | ||
Name: |
Asad Kazim |
||
| Title: | Managing Director | ||
Royal Bank of Canada
As Forward Purchaser
| By: | /s/ Brian Ward | ||
Name: |
Brian Ward |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Regions Securities LLC
As Agent and Forward Purchaser
| By: | /s/ Edward L. Armstrong | ||
Name: |
Edward L. Armstrong |
||
| Title: | Managing Director - ECM | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Robert W. Baird & Co. Incorporated
As Agent and Forward Purchaser
| By: | /s/ Christopher Walter | ||
Name: |
Christopher Walter |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Scotia Capital (USA) Inc.
As Agent
| By: | /s/ Tim Mann | ||
Name: |
Tim Mann |
||
| Title: | Managing Director | ||
The Bank of Nova Scotia
As Forward Purchaser
| By: | /s/ Kshamta Kaushik | ||
Name: |
Kshamta Kaushik |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
TD Securities (USA) LLC
As Agent
| By: | /s/ Brad Limpert | ||
Name: |
Brad Limpert |
||
| Title: | Managing Director | ||
The Toronto-Dominion Bank
As Forward Purchaser
| By: | /s/ Vanessa Simonetti | ||
Name: |
Vanessa Simonetti |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Truist Securities, Inc.
As Agent
| By: | /s/ Geoffrey Fennel | ||
Name: |
Geoffrey Fennel |
||
| Title: | Director | ||
Truist Bank
As Forward Purchaser
| By: | /s/ J. West Riggs | ||
Name: |
J. West Riggs |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Wells Fargo Securities, LLC
As Agent
| By: | /s/ Elizabeth Alvarez | ||
Name: |
Elizabeth Alvarez |
||
| Title: | Managing Director | ||
Wells Fargo Bank, National Association
As Forward Purchaser
| By: | /s/ Elizabeth Alvarez | ||
Name: |
Elizabeth Alvarez |
||
| Title: | Managing Director | ||
[Signature Page to Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement]
Annex 1
Healthpeak Properties, Inc.
Common Stock
($1.00 par value)
TERMS AGREEMENT
[●]
Ladies and Gentlemen:
Healthpeak Properties, Inc., a Maryland corporation (the “Company”), proposes, subject to the terms and conditions stated herein and in the At-the-Market Equity Offering Sales Agreement, dated February 17, 2023 (the “Sales Agreement”), among the Company, Healthpeak OP, LLC, a Maryland limited liability company (the “Operating Company”) and J.P. Morgan Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, Nomura Securities International, Inc., RBC Capital Markets, LLC, Regions Securities LLC, Robert W. Baird & Co. Incorporated, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC, each as sales agent, as principal (except in the case of Nomura Securities International, Inc.) and as forward seller (except in the case of BTIG, LLC) (in any such capacity, each, an “Agent”, and collectively, the “Agents”), and JPMorgan Chase Bank, National Association, Bank of America, N.A., The Bank of Nova Scotia, Barclays Bank PLC, BNP Paribas, Crédit Agricole Corporate and Investment Bank, Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Nomura Global Financial Products, Inc., Regions Securities LLC, Robert W. Baird & Co. Incorporated, Royal Bank of Canada, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association each as forward purchaser (in such capacity, each a “Forward Purchaser”, and collectively, the “Forward Purchasers”), to issue and sell to [●], as Agent, the securities specified in the Schedule hereto (the “Purchased Securities”) [, and solely for the purpose of covering over-allotments, to grant to the Agent the option to purchase the additional securities specified in the Schedule hereto (the “Additional Securities”)] 1. Capitalized terms used herein and not defined have the respective meanings ascribed thereto in the Sales Agreement.
1 Include only if [●] has an over-allotment option.
[The Agent shall have the right to purchase from the Company all or a portion of the Additional Securities as may be necessary to cover over-allotments made in connection with the offering of the Purchased Securities, at the same purchase price per share to be paid by the Agent to the Company for the Purchased Securities; provided that the purchase price payable by the Agent for any Additional Securities shall be reduced by an amount per share equal to any dividends or distributions paid or payable by the Company on the Purchased Securities but not payable on such Additional Securities. This option may be exercised by the Agent at any time (but not more than once) on or before the thirtieth day following the date hereof, by written notice to the Company. Such notice shall set forth the aggregate number of shares of Additional Securities as to which the option is being exercised, and the date and time when the Additional Securities are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Time of Delivery (as set forth in the Schedule hereto) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised. Payment of the purchase price for the Additional Securities shall be made at the Option Closing Date in the same manner and at the same office as the payment for the Purchased Securities. For purposes of clarity, the parties hereto agree that any Option Closing Date shall be a date on which Shares are delivered to the Agent pursuant to a Terms Agreement within the meaning of, and requiring the affirmation and deliverables described under, Sections 3((j), (k) and (l) of the Sales Agreement.]*
Each of the provisions of the Sales Agreement not specifically related to (a) the solicitation by the Agent, as agent of the Company, of offers to purchase securities or (b) the Confirmations, Confirmation Shares and related transactions is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Applicable Time [and any Option Closing Date]*, except that each representation and warranty in Section 1 of the Sales Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Sales Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement [and] [,] the Settlement Date [and any Option Closing Date]* in relation to the Prospectus as amended and supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement (as defined in the Sales Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Securities [and the Additional Securities]*, in the form heretofore delivered to the Agent is now proposed to be filed with the Securities and Exchange Commission.
Subject to the terms and conditions set forth herein and in the Sales Agreement which are incorporated herein by reference, the Company agrees to issue and sell to the Agent and the latter agrees to purchase from the Company the number of shares of the Purchased Securities at the time and place and at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Operating Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Agent, the Company and the Operating Company in accordance with its terms.
[Signature Pages Follow]
THIS TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
| Very truly yours, | |||
| Healthpeak Properties, Inc. | |||
| By | |||
| Name: | Peter A. Scott | ||
| Title: | Chief Financial Officer | ||
| Healthpeak OP, LLC | |||
| By: | Healthpeak Properties, Inc., | ||
| its Managing Member | |||
| By: | |||
| Name: | Peter A. Scott | ||
| Title: | Chief Financial Officer | ||
Accepted as of the date hereof:
[●]
| By: | |||
| Name: | |||
| Title: | |||
Exhibit 5.1
March 11, 2024
Healthpeak Properties, Inc.
Healthpeak OP, LLC
4600 South Syracuse Street
Suite 500
Denver, Colorado 80237
| Re: | Healthpeak Properties, Inc., a Maryland corporation (the “Company”) – Registration of shares of common stock, par value one dollar ($1.00) per share (the “Common Stock”), of the Company having an aggregate gross sales price of up to $1,500,000,000 (the “Shares”) to be sold in an at-the-market offering (the “Offering”) pursuant to a Registration Statement on Form S-3 (File Nos. 333-276954 and 333-276954-01) relating to an indeterminate aggregate initial offering price or number of (i) the Company’s shares of Common Stock, shares of preferred stock, par value $1.00 per share, depositary shares, debt securities, warrants and guarantees of debt securities of the Operating Company (as defined herein) and/or debt securities of the Company’s existing and future subsidiaries, and (ii) the Operating Company’s debt securities and guarantees of debt securities of the Company and/or debt securities of the Operating Company’s existing and future subsidiaries, filed with the Securities and Exchange Commission (the “Commission”) on February 8, 2024 (the “Registration Statement”) |
Ladies and Gentlemen:
We have acted as Maryland corporate counsel to the Company in connection with the registration of the Shares under the Securities Act of 1933, as amended (the “Act”), by the Company pursuant to the Registration Statement. We understand that, as of the date of the Prospectus Supplement (as defined herein), the Company has not sold any Shares pursuant to the Agreement (as defined herein), and, accordingly, Shares having an aggregate gross sales price of up to $1,500,000,000 remain available for offer and sale pursuant to the Prospectus Supplement. You have requested our opinion with respect to the matters set forth below.
In our capacity as Maryland corporate counsel to the Company 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 corporate charter of the Company (the “Charter”), consisting of Articles of Incorporation filed with the State Department of Assessments and Taxation of Maryland (the "Department") on December 13, 2022, Articles of Amendment and Restatement filed with the Department on February 9, 2023, Articles of Amendment filed with the Department on February 9, 2023 and Articles of Amendment filed with the Department on February 29, 2024; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
March 11, 2024
Page 2
| (ii) | the Amended and Restated Bylaws of the Company, dated as of February 10, 2023, as amended (the “Bylaws”); |
| (iii) | resolutions adopted by the Board of Directors of the Company (the “Board”) on or as of February 10, 2023 and February 1, 2024 (collectively, the “Initial Board Resolutions”) and February 10, 2023, April 27, 2023 and January 31, 2024 (the “ATM Sales Limit Board Resolutions” and together with the Initial Board Resolutions, collectively, the “Board Resolutions”), and the form of resolutions (the “Subsequent Resolutions”, and together with the Board Resolutions, collectively, the “Directors’ Resolutions”) to be adopted from time to time by the Board; |
| (iv) | a fully executed copy of the At-The-Market Equity Offering Sales Agreement, dated as of February 17, 2023, as amended by Amendment No. 1 to At-The-Market Equity Offering Sales Agreement, dated as of March 11, 2024 (collectively, the “Agreement”), by and between the Company, Healthpeak OP, LLC, a Maryland limited liability company of which the Company is the managing member (the “Operating Company”), and J.P. Morgan Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, Nomura Securities International, Inc., RBC Capital Markets, LLC, Regions Securities LLC, Robert W. Baird & Co. Incorporated, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC, each as sales agent and principal (except in the case of Nomura Securities International, Inc.) and forward seller (except in the case of BTIG, LLC and Capital One Securities, Inc.), and JPMorgan Chase Bank, National Association, Bank of America, N.A., The Bank of Nova Scotia, Barclays Bank PLC, BNP Paribas, Crédit Agricole Corporate and Investment Bank, Goldman Sachs & Co. LLC, Jefferies LLC, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Nomura Global Financial Products, Inc., Regions Securities LLC, Robert W. Baird & Co. Incorporated, Royal Bank of Canada, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association, each as forward purchaser; |
| (v) | a certificate of one or more officers of the Company, dated as of a recent date (the “Officers’ Certificate”), to the effect that, among other things, the copies of the Charter, the Bylaws, the Organizational Minutes and the Board 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 certifying as to the manner of adoption of the Board Resolutions, the authorization for issuance of the Shares, the form of the Subsequent Resolutions, and the form, approval, execution and delivery of the Agreement; |
| (vi) | the Registration Statement and the related base prospectus dated February 8, 2024, and the prospectus supplement dated March 11, 2024 relating to the Shares (the “Prospectus Supplement”), included therein, in substantially the form filed or to be filed with the Commission pursuant to the Act; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
March 11, 2024
Page 3
| (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; and |
| (viii) | such other laws, records, documents, certificates, opinions and instruments as we have deemed necessary to render this opinion, 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 instrument, document or agreement on behalf of any party (other than the Company and the Operating Company) is duly authorized to do so; |
| (b) | each natural person executing any instrument, document or agreement is legally competent to do so; |
| (c) | all Documents submitted to us as originals are authentic; the form and content of all Documents submitted to us as unexecuted drafts do not, and will not, differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; all Documents submitted to us as certified or photostatic copies conform to the original documents; all signatures on all Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true and complete; all representations, warranties, 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) | all certificates submitted to us, including but not limited to the Officers’ Certificate, are true, correct and complete both when made and as of the date hereof; |
| (e) | none of the Shares will be issued or transferred in violation of the provisions of Article V of the Charter relating to restrictions on ownership and transfer of stock or the provisions of Article V of the Charter relating to business combinations; |
| (f) | none of the Shares 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; |
| (g) | the Company has not, and is not required to be, registered under the Investment Company Act of 1940; |
| (h) | prior to issuance and sale of any of the Shares (other than the shares of Common Stock authorized for issuance and sale as provided in, and in accordance with, the ATM Sales Limit Board Resolutions), resolutions in the form of the Subsequent Resolutions setting forth, with respect to such Shares, the maximum aggregate gross sales price of such Shares to be issued and sold, the minimum gross sales price per share and the minimum price to be received by the Company per share (net of any discounts provided or commissions paid by the Company in connection with the offering of such Shares) will have been duly adopted at a duly convened meeting of the members of the Board or by unanimous consent of the members of the Board given in writing or by electronic transmission; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
March 11, 2024
Page 4
| (i) | the aggregate gross sales price of all of the Shares sold pursuant to the Agreement will not exceed $1,500,000,000; the aggregate gross sales price of all of the Shares sold pursuant to the Agreement during each approximately three month period between the regular quarterly meetings of the Board (or such other period of time as may be determined by the Board and set forth in the Directors’ Resolutions) will not exceed $500,000,000 (or such greater or lesser limit as may be determined by the Board and set forth in the Directors’ Resolutions); and the aggregate number of Shares issued and sold pursuant to the Agreement will not exceed the maximum aggregate number authorized for issuance and sale in the Directors' Resolutions; |
| (j) | the consideration per Share to be received by the Company for each Share issued and sold pursuant to the Agreement will be determined in accordance with, and will not be less than the applicable minimum consideration per share set forth in, the Directors' Resolutions; and |
| (k) | upon each issuance of any of the Shares subsequent to the date hereof, the total number of shares of Common Stock of the Company issued and outstanding, after giving effect to such issuance of such Shares, will not exceed the total number of shares of Common Stock that the Company is authorized to issue under the Charter. |
Based on 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. | The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. |
| 2. | The Shares to be issued in the Offering have been generally authorized for issuance by the Company pursuant to the Agreement, and when such Shares are issued and delivered pursuant to due authorization by the Board subsequent to the date hereof, in exchange for payment of the consideration therefor, as provided in, and in accordance with the terms of, the Agreement and the Directors’ Resolutions, such Shares will be duly authorized, validly issued, fully paid and nonassessable. |
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 the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
March 11, 2024
Page 5
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 the incorporation by reference of this opinion in 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 Shares. We also consent to the identification of our firm 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.
| Very truly yours, | |
| /s/ Ballard Spahr LLP |