NXRT 8-K
NexPoint Residential Trust, Inc. (NXRT)
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(State or Other Jurisdiction
of Incorporation)
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(Commission
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(IRS Employer
Identification No.) |
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Exhibit No.
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Description
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5.1
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8.1
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23.1
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23.2
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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NEXPOINT RESIDENTIAL TRUST, INC.
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By:
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/s/ Paul Richards
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Name: Paul Richards
Title: Chief Financial Officer, Executive VP-Finance, Treasurer and Assistant Secretary
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Exhibit 5.1
| March 20, 2025 |
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NexPoint Residential Trust, Inc. 300 Crescent Court, Suite 700 Dallas, Texas 75201 |
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Re: |
NexPoint Residential Trust, Inc., a Maryland corporation (the “Company”) |
Ladies and Gentlemen:
We have acted as Maryland corporate counsel to the Company in connection with certain matters of Maryland law arising out of the registration of shares of common stock, par value $0.01 per share (“Common Stock”), of the Company having a maximum aggregate gross sales price of $162,689,033 (the “Shares”) to be sold in an at-the-market offering (the “Offering”) pursuant to a Registration Statement on Form S-3 (Registration No. 333-278402) originally filed by the Company with the United States Securities and Exchange Commission (the “Commission”) on or about March 29, 2024 (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Act”). We understand that, as of the date hereof, the Company has sold Shares having an aggregate gross sales price of approximately $62.3 million pursuant to the Equity Distribution Agreements (as defined herein), and, accordingly, Shares having an aggregate gross sales price of approximately $162.7 million may be sold pursuant to the Equity Distribution Agreements and 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 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”) represented by Articles of Amendment and Restatement filed with the State Department of Assessments and Taxation of Maryland (the “Department”) on June 15, 2016;
(ii) the Amended and Restated Bylaws of the Company, as in effect on the date hereof (the “Bylaws”);
(iii) certain resolutions adopted by the Board of Directors of the Company (the “Board of Directors”), or a duly authorized committee thereof, relating to, among other things, the authorization of the issuance of the Shares (collectively, the “Directors’ Resolutions”);
BALLARD SPAHR LLP
NexPoint Residential Trust, Inc.
March 20, 2025
Page 2
(iv) the Registration Statement and the related prospectus, dated March 29, 2024, and prospectus supplement, dated March 20, 2025, included therein, in substantially the form filed or to be filed with the Commission pursuant to the Act;
(v) fully executed copies of each Equity Distribution Agreement, each dated as of March 4, 2020 (each, an “Equity Distribution Agreement” and, collectively, the “Equity Distribution Agreements”), by and among the Company, NexPoint Residential Trust Operating Partnership, L.P., a Delaware limited partnership, NexPoint Real Estate Advisors, L.P., a Delaware limited partnership, and each of Jefferies LLC and Raymond James & Associates, Inc., as sales agent and principal and, in certain cases, as forward seller and forward purchaser;
(vi) 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 Charter, the Bylaws 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 certifying, among other things, as to the authorization, approval, execution and delivery of the Equity Distribution Agreements;
(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 is duly authorized to transact business in 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 of the Documents on behalf of a 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; any of the Documents submitted to us as certified 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 Officers’ Certificate and all other certificates submitted to us are true and correct both when made and as of the date hereof;
BALLARD SPAHR LLP
NexPoint Residential Trust, Inc.
March 20, 2025
Page 3
(e) the Company has not, and is not required to be, registered under the Investment Company Act of 1940;
(f) none of the Shares will be issued or transferred in violation of the provisions of Article VII of the Charter relating to restrictions on ownership and transfer of shares of stock of the Company;
(g) 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;
(h) the aggregate gross sales price of all of the Shares will not exceed $162,689,033, and the aggregate number of Shares to be issued and sold pursuant to the Equity Distribution Agreements will not exceed the maximum number of Shares authorized for issuance and sale in the Directors’ Resolutions;
(i) the consideration per share to be received by the Company for each of the Shares to be issued and sold pursuant to the Equity Distribution Agreements 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
(j) 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 duly authorized by all necessary corporate action on the part of the Company, and when such Shares are issued and delivered by the Company in exchange for payment therefor, in accordance with the Equity Distribution Agreements and the Directors’ Resolutions, such Shares will be validly issued, fully paid and non-assessable.
The foregoing opinions are 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 opinions are 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
NexPoint Residential Trust, Inc.
March 20, 2025
Page 4
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 Company’s Current Report on Form 8-K relating to the Shares, which is incorporated by reference in the Registration Statement, and we 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 as Maryland corporate 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.
| Very truly yours, /s/ Ballard Spahr LLP |
Exhibit 8.1
March 20, 2025
NexPoint Residential Trust, Inc.
300 Crescent Court, Suite 700
Dallas, Texas 75201
Ladies and Gentlemen:
We have acted as counsel to NexPoint Residential Trust, Inc., a Maryland corporation (the “Company”) in connection with an “at the market” equity offering by the Company relating to the issuance and sale of shares of the Company’s common stock, par value $0.01 per share (the “Shares”) up to a maximum aggregate offering amount of $162,689,033. The Shares are included in the Company’s registration statement on Form S-3 (Registration No. 333-278402), in the form filed with the Securities and Exchange Commission (the “Commission”) on March 29, 2024 (the “Registration Statement”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), and the final prospectus supplement, dated the date hereof (the “Prospectus Supplement”), to the base prospectus forming part of the Registration Statement (together with the documents incorporated by reference therein, the “Base Prospectus” and the Base Prospectus together with the Prospectus Supplement, the “Prospectus”) with the Prospectus forming part of the Registration Statement. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Prospectus.
You have requested our opinion concerning certain U.S. federal income tax considerations relating to the Company, including with respect to its election to be taxed as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”). In connection with our opinion, we have reviewed and are relying upon:
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the Registration Statement, including the documents incorporated by reference therein and the information deemed to be part thereof pursuant to Rule 430B under the Securities Act; |
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the Prospectus, in the form contained in the Registration Statement; |
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the Company’s Articles of Amendment and Restatement (the “Articles of Incorporation”) and Amended and Restated Bylaws (the “Bylaws”), in each case, as in effect on the date hereof; and |
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the Amended and Restated Limited Partnership Agreement of NexPoint Residential Trust Operating Partnership, L.P. (the “OP”), as in effect on the date hereof. |
March 20, 2025
Page 2
such other documents, records and instruments that we have deemed necessary or appropriate for purposes of our opinion, and have assumed their accuracy as of the date hereof. For purposes of our review, we have also assumed, with your consent, the authenticity of all documents we have examined as well as the genuineness of signatures and the validity of the indicated capacity of each party executing a document. This opinion is based on various facts and assumptions, including the facts set forth in the Registration Statement (as the same may be amended or supplemented from time to time) concerning the business, assets and governing documents of the Company and its subsidiaries. We have also been furnished with, and have relied upon, certain representations made by the Company and its subsidiaries with respect to certain factual matters set forth in a certificate of an authorized and knowledgeable (with respect to the matters therein) officer of the Company, dated as of the date hereof (the “Officer’s Certificate”).
In our capacity as counsel to the Company we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments, as we have deemed necessary or appropriate for purposes of this opinion. For purposes of our opinion, we have not made an independent investigation or audit of the facts set forth in the above referenced documents or in the Officer’s Certificate. In addition, in rendering this opinion we have assumed the truth and accuracy of all representations and statements made to us which are qualified as to knowledge or belief, without regard to such qualification. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents, and the conformity to authentic original documents of all documents submitted to us as copies.
Our opinion is based upon the current provisions of the Code, Treasury Regulations promulgated thereunder, current administrative rulings, judicial decisions, and other applicable authorities, all as in effect on the date hereof. All of the foregoing authorities are subject to change or new interpretation, both prospectively and retroactively, and such changes or interpretation, as well as changes in the facts as they have been represented to us or assumed by us, could affect our opinion. Our opinion is rendered only as of the date hereof and we undertake no responsibility to update this opinion after this date. Our opinion does not foreclose the possibility of a contrary determination by the Internal Revenue Service (the “IRS”) or by a court of competent jurisdiction, or of a contrary position by the IRS or Treasury Department in regulations or rulings issued in the future.
Based on the foregoing, and subject to the limitations, qualifications and exceptions set forth herein, we are of the opinion that:
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during the period commencing with the Company’s taxable year ended December 31, 2015 through its taxable year ended December 31, 2024, the Company was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and the Company’s current organization and current and proposed method of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2025 and for future taxable years; and |
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the statements set forth in the Prospectus constituting part of the Registration Statement under the caption “U.S. Federal Income Tax Considerations” insofar as such statements purport to summarize U.S. federal income tax laws or provisions of documents referred to therein, present fair summaries of such laws and documents in all material respects. |
The Company’s qualification and taxation as a REIT depend upon the Company’s ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code with regard to, among other things, the sources of gross income, the composition of assets, the level of distributions to stockholders, and the diversity of its stock ownership. Winston & Strawn LLP undertakes no responsibility to review, and will not review, the Company’s compliance with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the Company’s operations, the nature of its assets, the amount and types of its gross income, the level of its distributions to stockholders and the diversity of its stock ownership for any given taxable year has satisfied the requirements under the Code for qualification and taxation as a REIT.
Other than as expressly stated above, we express no opinion on any issue relating to the Company, the OP, the Adviser or any of the Company’s subsidiaries or to any investment therein.
We hereby consent to the filing of this opinion as Exhibit 8.1 to the Company’s Current Report on Form 8-K relating to the Shares, which is incorporated by reference in the Prospectus constituting a part of the Registration Statement, and to the reference to us under the captions “U.S. Federal Income Tax Considerations” and “Legal Matters” in the Prospectus constituting a part of such Registration Statement. In giving such consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
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Very truly yours,
/s/ Winston & Strawn LLP |