Kite Realty Group Trust 8-K, filed Nov 30, 2021
Kite Realty Group Trust (KRG)
About this 8-K
Kite Realty Group Trust filed this 8-K on November 30, 2021.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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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).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01 Other Events.
On November 30, 2021, Kite Realty Group Trust (the “Company”) and Kite Realty Group, L.P. (the “Operating Partnership”) entered into Amendment No. 1, dated November 30, 2021 (“Amendment No. 1”), with BofA Securities, Inc., Citigroup Global Markets Inc., KeyBanc Capital Markets Inc. and Raymond James & Associates, Inc. (each, individually, an “Agent” and together, the “Agents”) to the Equity Distribution Agreement, dated February 23, 2021 (the “Equity Distribution Agreement”), pursuant to which the Company may sell, from time to time, up to an aggregate sales price of $150,000,000 of its common shares of beneficial interest, $0.01 par value per share (the “Common Shares”), through the Agents.
Amendment No. 1, among other things, amends the Equity Distribution Agreement to reflect the filing by the Company and the Operating Partnership of a shelf registration statement on Form S-3 (File Nos. 333-261119 and 333-261119-01) (the “Registration Statement”) on November 16, 2021 with the Securities and Exchange Commission (the “SEC”). The Registration Statement became immediately effective upon filing with the SEC. The Registration Statement was filed to replace the Company’s and the Operating Partnership’s previous shelf registration statement on Form S-3 (File Nos. 333-253393 and 333-253393-01) (the “Prior Registration Statement”).
On November 30, 2021, the Company also filed with the SEC a prospectus supplement (the “ATM Prospectus Supplement”) pursuant to the Registration Statement that replaces a prospectus supplement that was originally filed pursuant to the Prior Registration Statement and related to the sale of the Common Shares pursuant to the Equity Distribution Agreement. In connection with the filing of the ATM Prospectus Supplement, the Company is filing as Exhibit 5.1 hereto an opinion of its counsel, Hogan Lovells US LLP, regarding the legality of the securities being registered under the ATM Prospectus Supplement.
Prior to Amendment No. 1, the Company had sold no Common Shares under the Equity Distribution Agreement.
Sales of the Common Shares made pursuant to the Equity Distribution Agreement, if any, may be sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), including without limitation directly on the New York Stock Exchange, or any other existing trading market for the Common Shares or through a market maker, or, if agreed by the Company and the Agents, by any other method permitted by law, including but not limited to in privately negotiated transactions.
The Common Shares sold in the offering will be issued pursuant to the ATM Prospectus Supplement and the accompanying base prospectus dated November 16, 2021, forming part of the Registration Statement.
Other terms of the offering are described in the Company’s and the Operating Partnership’s Current Report on Form 8-K filed on February 23, 2021, which is incorporated by reference herein. The Company made certain customary representations, warranties and covenants concerning the Company, the Operating Partnership and the Common Shares in the Equity Distribution Agreement and Amendment No. 1 and also agreed to indemnify the Agents against certain liabilities, including liabilities under the Securities Act. The foregoing description of the Equity Distribution Agreement and Amendment No. 1 does not purport to be complete and is subject to, and qualified in its entirety by reference to, Amendment No. 1, attached hereto as Exhibit 1.1, and the original Equity Distribution Agreement, which is attached as Exhibit 1.1 to the Current Report on Form 8-K filed with the SEC on February 23, 2021, each of which are incorporated herein by reference.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit Number | Description | |
| 1.1 | Amendment No. 1 to Equity Distribution Agreement, dated November 30, 2021, by and among the Company, the Operating Partnership and BofA Securities, Inc., Citigroup Global Markets Inc., KeyBanc Capital Markets Inc. and Raymond James & Associates, Inc. | |
| 5.1 | Opinion of Hogan Lovells US LLP regarding the legality of the Common Shares | |
| 23.1 | Consent of Hogan Lovells US LLP (included in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (embedded with the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| KITE REALTY GROUP TRUST | ||
| Date: November 30, 2021 | By: | /s/ Heath R. Fear |
| Heath R. Fear Executive Vice President and Chief Financial Officer | ||
| KITE REALTY GROUP, L.P. | ||
| By: | Kite Realty Group Trust, its sole general partner | |
| Date: November 30, 2021 | By: | /s/ Heath R. Fear |
| Heath R. Fear | ||
| Executive Vice President and Chief Financial Officer | ||
Exhibit 1.1
KITE REALTY GROUP TRUST
Common Shares of Beneficial Interest
($0.01 par value)
AMENDMENT NO. 1 TO THE EQUITY DISTRIBUTION AGREEMENT
November 30, 2021
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BofA Securities, Inc. One Bryant Park New York, New York 10036
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Citigroup Global Markets Inc. 388 Greenwich Street New York, New York 10013
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KeyBanc Capital Markets Inc. 127 Public Square, 4th Floor Cleveland, Ohio 44114 |
Raymond James & Associates, Inc. 880 Carillon Parkway St. Petersburg, Florida 33716 |
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated February 23, 2021 (the “Agreement”), by and among Kite Realty Group Trust (the “Company”) and Kite Realty Group, L.P. (the “Operating Partnership”) and BofA Securities, Inc., Citigroup Global Markets Inc., KeyBanc Capital Markets Inc. and Raymond James & Associates, Inc. (collectively, the “Parties”). On November 16, 2021 (the “Effective Date”), the Company and the Operating Partnership filed with the Securities and Exchange Commission (the “Commission”) an “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-261119) (the “Registration Statement”), in respect of certain of the Company’s and the Operating Partnership’s securities. Prior to the Effective Date, the Company conducted the transactions contemplated by the Agreement pursuant to an automatic shelf registration statement on Form S-3 (File No. 333-253393) (the “Expiring Registration Statement”). The Parties wish to amend the Agreement to reference the Registration Statement instead of the Expiring Registration Statement. The Parties therefore hereby agree as follows:
1. Commission File Number. Sections 1 and 5(a)(1) of the Agreement are hereby amended so that the references to the Commission file number of the automatic shelf registration statement on Form S-3 filed by the Company with the Commission shall be file number 333-261119.
2. Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Amendment. 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, e.g., www.docusign.com) 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.
November 30, 2021
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4. Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.
Terms used herein but not otherwise defined are used herein as defined in the Agreement.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Parties in accordance with its terms.
| Very truly yours, | ||
| KITE REALTY GROUP TRUST | ||
| By: | ||
| /s/ Heath R. Fear | ||
| Name: Heath R. Fear | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| KITE REALTY GROUP, L.P. | ||
| By: | Kite Realty Group Trust, | |
| its general partner | ||
| By: | ||
| /s/ Heath R. Fear | ||
| Name: Heath R. Fear | ||
| Title: Executive Vice President and Chief Financial Officer | ||
The foregoing Amendment No. 1 to the Agreement is hereby confirmed and accepted as of the date first written above. |
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| BOFA SECURITIES, INC. | ||
| By: | /s/ Chris Porter | |
| Name: Chris Porter | ||
| Title: Managing Director | ||
| Citigroup Global Markets Inc. | ||
| By: | /s/ Kase Lawal | |
| Name: Kase Lawal | ||
| Title: Vice President | ||
| KEYBANC CAPITAL MARKETS INC. | ||
| By: | /s/ Paul Hodermarsky | |
| Name: Paul Hodermarsky | ||
| Title: Managing Director | ||
| RAYMOND JAMES & ASSOCIATES, Inc. | ||
| By: | /s/ Brad Butcher | |
| Name: Brad Butcher | ||
| Title: Co-Head of Real Estate Investment Banking | ||
Exhibit 5.1
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Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 T +1 202 637 5600 F +1 202 637 5910 www.hoganlovells.com |
November 30, 2021
Kite Realty Group Trust
Kite Realty Group, L.P.
30 S. Meridian Street
Suite 1100
Indianapolis, IN 46204
To the addressees referred to above:
We are acting as counsel to Kite Realty Group Trust, a Maryland real estate investment trust (the “Company”), and Kite Realty Group, L.P., a Delaware limited partnership (the “Operating Partnership”), in connection with the issuance and sale from time to time of up to $150,000,000 aggregate gross sales price of the Company’s common shares of beneficial interest, par value $0.01 per share (the “Shares”), by the Company pursuant to the terms of the Equity Distribution Agreement, originally dated February 23, 2021, as amended by Amendment No. 1, dated the date hereof (as amended, the “Equity Distribution Agreement”), by and among the Company, the Operating Partnership and each of BofA Securities, Inc., Citigroup Global Markets Inc., KeyBanc Capital Markets Inc. and Raymond James & Associates, Inc. The offering of the Shares by the Company is being made pursuant to a prospectus supplement dated November 30, 2021 and the accompanying base prospectus dated November 16, 2021 (such documents, collectively, the “Prospectus”) that form part of the Company’s effective registration statement on Form S-3 (File No. 333-261119) (the “Registration Statement”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). We also have assumed that the Shares will not be issued in violation of the ownership limit contained in the Company’s Amended and Restated Declaration of Trust, as amended and supplemented from time to time. As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices: Budapest Jakarta Riyadh Shanghai FTZ Ulaanbaatar Zagreb. Business Service Centers: Johannesburg Louisville. Legal Services Center: Berlin. For more information see www.hoganlovells.com
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This opinion letter is based as to matters of law solely on the applicable provisions of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that the issuance of the Shares has been authorized and, when the Shares have been issued in the manner set forth in the Registration Statement and Equity Distribution Agreement, the Shares will be validly issued, fully paid, and nonassessable.
This opinion letter has been prepared for use in connection with the filing by the Company of a Current Report on Form 8-K relating to the offer and sale of the Shares, which Form 8-K will be incorporated by reference into the Registration Statement and Prospectus, and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the above described Form 8-K and to the reference to this firm under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not thereby admit 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 |