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Section 1: 8-K (8-K)

8-K
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 27, 2020
 
SPIRIT REALTY CAPITAL, INC.
SPIRIT REALTY, L.P.
(Exact name of registrant as specified in its charter)
 
Maryland
 
 
20-1676382
(Spirit Realty Capital, Inc.)
 
001-36004
 
(Spirit Realty Capital, Inc.)
Delaware
(Spirit Realty, L.P.)
 
333-216815-01
 
20-1127940
(Spirit Realty, L.P.)
(State or other jurisdiction
of incorporation)
 
(Commission
File Number)
 
(I.R.S. Employer
Identification No.)
2727 North Harwood Street, Suite 300
Dallas, Texas 75201
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (972) 476-1900
Not Applicable
(Former name or former address, if changed since last report.)
 
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):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Registrant
 
Title of each class
 
Trading
Symbol(s)
 
Name of each exchange
on which registered
Spirit Realty Capital, Inc.
 
Common stock, par value $0.05 per share
 
SRC
 
New York Stock Exchange
Spirit Realty Capital, Inc.
 
6.000% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share
 
SRC-A
 
New York Stock Exchange
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
Spirit Realty Capital, Inc.    
Emerging growth company  
Spirit Realty, L.P.    
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.
Spirit Realty Capital, Inc.  
    Spirit Realty, L.P.  
 
 

ITEM 8.01
OTHER EVENTS.
On February 27, 2020, Spirit Realty Capital, Inc. (the “Company”) and Spirit Realty, L.P. (the “Operating Partnership”) entered into an amendment (the “Amendment”) of their existing amended and restated equity distribution agreement (as amended, the “equity distribution agreement”) with BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Stifel, Nicolaus & Company, Incorporated, SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC (each, an “agent” and, collectively, the “agents”) and Bank of America, N.A., The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Royal Bank of Canada and Wells Fargo Bank, National Association (in such capacity, each, a “forward purchaser and, collectively, the “forward purchasers”). The purpose of the Amendment was to add each of BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., Morgan Stanley & Co. LLC and Regions Securities LLC as an agent and each of Bank of America, N.A., Mizuho Markets Americas LLC, and Morgan Stanley & Co. LLC as a forward purchaser under the equity distribution agreement. Under the existing equity distribution agreement, the Company had offered and sold shares of its common stock having an aggregate gross sales price of $253,439,017 through February 27, 2020. As a result of such prior sales, as of February 27, 2020, shares of the Company’s common stock having an aggregate gross sales price of up to $246,560,983 remain available for offer and sale under the equity distribution 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 Securities and Exchange Commission (the “SEC”) a prospectus supplement, dated February 27, 2020, to its shelf registration statement on Form
 S-3
 (Registration Nos.
 333-220618),
 which was filed with the SEC and became effective on September 25, 2017, pursuant to Rule 424(b) under the Securities Act of 1933, as amended. An opinion of Ballard Spahr LLP with respect to the validity of shares of the Company’s common stock that may be offered and sold pursuant to this prospectus supplement and the accompanying prospectus is filed herewith as Exhibit 5.1.
This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
ITEM 9.01
FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits.
         
 
  1.1
   
         
 
  5.1
   
         
 
23.1
   
         
 
104
   
Cover Page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: February 27, 2020
 
SPIRIT REALTY CAPITAL, INC.
     
By:
 
/s/ Michael Hughes
 
Michael Hughes
 
Executive Vice President and Chief Financial Officer
     
 
SPIRIT REALTY, L.P.
     
By:
 
Spirit General OP Holdings, LLC, as general partner of Spirit Realty, L.P.
     
By:
 
/s/ Michael Hughes
 
Michael Hughes
 
Executive Vice President and Chief Financial Officer
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Section 2: EX-1.1 (EX-1.1)

EX-1.1

Exhibit 1.1

Execution Version

SPIRIT REALTY CAPITAL, INC.

COMMON STOCK (PAR VALUE $0.05 PER SHARE)

AMENDMENT NO. 1 TO

AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT

February 27, 2020


AMENDMENT NO. 1 TO AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT

AMENDMENT NO. 1, dated as of the 27th day of February, 2020 (the “Amendment No. 1”), by and among Spirit Realty Capital, Inc., a Maryland corporation (the “Company”), Spirit Realty, L.P., a Delaware limited partnership (the “Operating Partnership”), SunTrust Robinson Humphrey, Inc., BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Stifel, Nicolaus & Company, Incorporated and Wells Fargo Securities, LLC, as sales agents (each, a “Manager” and, collectively, the “Managers”) and Bank of America, N.A., The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Royal Bank of Canada and Wells Fargo Bank, National Association, as forward purchasers (each, a “Forward Purchaser and, collectively, the “Forward Purchasers”), to that certain Amended and Restated Equity Distribution Agreement, dated February 22, 2019 (the “Agreement”).

W I T N E S S E T H:

WHEREAS, the Company, the Operating Partnership, SunTrust Robinson Humphrey, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC, RBC Capital Markets, LLC, Scotia Capital (USA) Inc., Stifel, Nicolaus & Company, Incorporated, Wells Fargo Securities, LLC, The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Royal Bank of Canada and Wells Fargo Bank, National Association are parties to the Agreement (the “Original Parties’);

WHEREAS, the Original Parties wish to amend the Agreement to modify the definition of certain defined terms set forth in the Agreement and used therein, and BTIG, LLC, Bank of America, N.A., BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC and Regions Securities LLC wish to become parties to the Agreement, in each case with effect on and after February 27, 2020 (the “Effective Date”); and

WHEREAS, this Amendment No. 1 shall constitute an amendment to the Agreement, which shall remain in full force and effect as amended by this Amendment.

NOW, THEREFORE, in consideration of the mutual agreement to amend the Agreement, the parties hereto, intending legally to be bound, hereby amend and modify the Agreement as of the date hereof as follows:

Section 1.     Definitions. Unless otherwise specified herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.

Section 2.     Representation and Warranty. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to the Managers and the Forward Purchasers that this Amendment No. 1 has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company and the Operating Partnership.

 

1


Section 3.     Amendment of the Agreement.

(a)    On and after the Effective Date, the references to “Prospectus Supplement” shall refer to the final prospectus supplement, relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on the date hereof, in the form furnished by the Company to the Managers in connection with the offering of the Shares.

(b)    On and after the Effective Date, the references to “Manager” and “Managers” shall refer to each of SunTrust Robinson Humphrey, Inc., BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Stifel, Nicolaus & Company, Incorporated and Wells Fargo Securities, LLC.

(c)    On and after the Effective Date, the references to “Forward Purchaser” and “Forward Purchasers” shall refer to each of Bank of America, N.A., The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Royal Bank of Canada and Wells Fargo Bank, National Association.

(d)    Section 15 of the Agreement is amended to replace the notice party information for JPMorgan Chase Bank, National Association with the following:

“if to JPMorgan Chase Bank, National Association shall be delivered, mailed or sent to JPMorgan Chase Bank, National Association, New York Branch, 383 Madison Avenue, New York, New York 10179, Attention: EDG Marketing Support, E-mail: [email protected] and [email protected], with a copy to Attention: Stephanie Little, Email: [email protected];”

(e)    Section 15 of the Agreement is amended to replace the notice party information for Mizuho Securities USA LLC with the following:

“if to Mizuho Securities USA LLC or Mizuho Markets Americas LLC shall be delivered, mailed or sent to Mizuho Securities USA LLC, 1271 Avenue of the Americas, 3rd Floor, New York, New York 10020, E-mail: [email protected], Attention: Equity Capital Markets;”

(f)    Section 15 of the Agreement is amended to replace the notice party information for Wells Fargo Securities, LLC and Wells Fargo Bank, National Association with the following:

“if to Wells Fargo Securities, LLC shall be delivered, mailed or sent to Wells Fargo Securities, LLC, 500 West 33rd Street, New York, New York 10001, Attention: Equity Syndicate Department, fax no: (212) 214-5918, or if to Wells Fargo Bank, National Association shall be delivered, mailed or sent to Wells Fargo Bank, National Association,

 

2


500 West 33rd Street, New York, New York 10001, Attention: Structuring Services Group, fax no. (212) 214-5913, with a copy to [email protected];”

(g)    Section 15 of the Agreement is amended to add the following notice party information:

“if to BTIG, LLC shall be delivered, mailed or sent to BTIG, LLC, 65 East 55th Street, New York, New York 10022, Attention: ATM Trading Desk, email: [email protected];”

“if to BofA Securities, Inc. or Bank of America, N.A. shall be delivered, mailed or sent to BofA Securities, Inc., One Bryant Park, New York, New York 10036, Attention: ATM Execution Team ([email protected]), with a copy to Rohan Handa ([email protected]) and Robert Stewart ([email protected]);”

“if to Capital One Securities, Inc. shall be delivered, mailed or sent to Capital One Securities, Inc., 201 St. Charles Ave, Suite 1830, New Orleans, Louisiana 70170, Attention: Gabrielle Halprin ([email protected]);”

“if to Fifth Third Securities, Inc. shall be delivered, mailed or sent to Fifth Third Securities, Inc., 424 Church Street, Suite 600, Nashville, Tennessee 37219, Attention: Equity Trading Desk, with a copy to Fifth Third Legal Department, 38 Fountain Square Plaza, Maildrop 10909F, Cincinnati, Ohio 45263, Attention Michael Bertkau;”

“if to Regions Securities LLC shall be delivered, mailed or sent to Regions Securities LLC, 615 South College Street, Suite 600, Charlotte, North Carolina 28202, Attention: Brit Stephens ([email protected]) and Ed Armstrong ([email protected]);”

“if to Morgan Stanley & Co. LLC shall be delivered, mailed or sent to Morgan Stanley & Co. LLC, 1585 Broadway, 4th Floor, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department;”

(h)    The first paragraph of Exhibit A of the Agreement is amended as follows:

“This Notification sets forth the terms of the agreement of [NAME OF MANAGER] (the “Manager”) with Spirit Realty Capital, Inc. (the “Company”) and Spirit Realty, L.P. relating to the sale of shares of the Company’s common stock, $0.05 par value per share, having an aggregate gross sales price of up to $500,000,000, pursuant to the amended and restated equity distribution agreement between the Company, Spirit Realty, L.P., SunTrust Robinson Humphrey, Inc., BTIG, LLC, Bank of America, N.A., BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Stifel, Nicolaus & Company, Incorporated, Wells Fargo Securities, LLC, The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Royal

 

3


Bank of Canada and Wells Fargo Bank, National Association dated February 22, 2019 (the “Agreement”). Unless otherwise defined below, capitalized terms defined in the Agreement shall have the same meanings when used herein.”

(i)    Notwithstanding anything to the contrary contained herein, this Amendment No. 1 shall not have any effect on offerings or sales of Shares prior to the Effective Date or on the terms of the Agreement, and the rights and obligations of the parties thereunder, insofar as they relate to such offerings or sales, including, without limitation, the representations, warranties and agreements (including the indemnification and contribution provisions), as well as the definitions of “Prospectus Supplement,” “Manager” and “Forward Purchaser,” contained in the Agreement prior to the Effective Date.

Section 4.     Applicable Law. This Amendment No. 1 and any claim, controversy or dispute arising under or related to this Amendment No. 1 shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice of law or conflicting provision or rule (whether of the State of New York, or any other jurisdiction) that would cause the laws of any jurisdiction other than the State of New York to be applied.

Section 5.     Entire Agreement. The Agreement, as amended by this Amendment No. 1, represents the entire agreement between the Company, the Operating Partnership, each Manager and each Forward Purchaser with respect to the preparation of any Registration Statement, Prospectus Supplement or the Prospectus, the conduct of the offering and the sale and distribution of the Shares.

Section 6.     Execution in Counterparts. This Amendment No. 1 may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

[SIGNATURE PAGES FOLLOW]

 

4


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 between the Managers, the Forward Purchasers and the Company in accordance with its terms.

 

Very truly yours,

 

Spirit Realty Capital, Inc.

By:  

/s/ Michael Hughes

Name:   Michael Hughes
Title:  

Executive Vice President

and Chief Financial Officer

Spirit Realty, L.P.

 

By: Spirit General OP Holdings, LLC, its general partner

By:  

/s/ Michael Hughes

Name:   Michael Hughes
Title:  

Executive Vice President

and Chief Financial Officer

[Spirit Realty EDA Amendment - Company Signature Page]


Accepted as of the date first written above

 

By:   SunTrust Robinson Humphrey, Inc.
By:  

/s/ John M. H. Williams II

Name:   John M. H. Williams II
Title:   Managing Director
By:   BTIG, LLC
By:  

/s/ Stephen P. Ortiz

Name:   Stephen P. Ortiz
Title:   Managing Director
By:   BofA Securities, Inc.
By:  

/s/ Chris Porter

Name:   Chris Porter
Title:   Managing Director, Investment Banking
By:   Capital One Securities, Inc.
By:  

/s/ Greg Steele

Name:   Greg Steele
Title:   Managing Director
By:   Fifth Third Securities, Inc.
By:  

/s/ Michael E. Ryan

Name:   Michael E. Ryan
Title:   Managing Director, ECM

[Spirit Realty EDA Amendment – Manager Signature Page]


By:   J.P. Morgan Securities LLC
By:  

/s/ Stephanie Little

Name:   Stephanie Little
Title:   Executive Director
By:   Mizuho Securities USA LLC
By:  

/s/ Stephen FX Roney

Name:   Stephen FX Roney
Title:   Managing Director
By:   Morgan Stanley & Co. LLC
By:  

/s/ Jon Sierant

Name:   John Sierant
Title:   Executive Director
By:   RBC Capital Markets, LLC
By:  

/s/ Christopher Allred

Name:   Christopher Allred
Title:   Managing Director
By:   Regions Securities LLC
By:  

/s/ Brit Stephens

Name:   Brit Stephens
Title:   Managing Director

[Spirit Realty EDA Amendment – Manager Signature Page]


By:   Scotia Capital (USA) Inc.
By:  

/s/ John Stracquadanio

Name:   John Stracquadanio
Title:   Managing Director
By:   Stifel, Nicolaus & Company, Incorporated
By:  

/s/ Chad M. Gorsuch

Name:   Chad M. Gorsuch
Title:   Managing Director
By:   Wells Fargo Securities, LLC
By:  

/s/ Elizabeth Alvarez

Name:   Elizabeth Alvarez
Title:   Managing Director

As Managers

[Spirit Realty EDA Amendment – Manager Signature Page]


Accepted as of the date first written above

 

By:   Bank of America, N.A.
By:  

/s/ Jake Mendelsohn

Name:   Jake Mendelsohn
Title:   Managing Director
By:   The Bank of Nova Scotia
By:  

/s/ John Stracquadanio

Name:   John Stracquadanio
Title:   Managing Director
By:   JPMorgan Chase Bank, National Association
By:  

/s/ Stephanie Little

Name:   Stephanie Little
Title:   Executive Director
By:   Mizuho Markets Americas LLC
By:  

/s/ Adam Hopkins

Name:   Adam Hopkins
Title:   Attorney-in-Fact
By:   Morgan Stanley & Co. LLC
By:  

/s/ Jon Sierant

Name:   Jon Sierant
Title:   Executive Director

[Spirit Realty EDA Amendment – Forward Purchaser Signature Page]


By:   Royal Bank of Canada
By:  

/s/ Brian Ward

Name:   Brian Ward
Title:   Managing Director
By:   Wells Fargo Bank, National Association
By:  

/s/ Craig McCracken

Name:   Craig McCracken
Title:   Managing Director

As Forward Purchasers

[Spirit Realty EDA Amendment – Forward Purchaser Signature Page]

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Section 3: EX-5.1 (EX-5.1)

EX-5.1

Exhibit 5.1

 

LOGO

February 27, 2020

Spirit Realty Capital, Inc.

2727 North Harwood Street

Suite 300

Dallas, Texas 75201

 

  Re:

Spirit Realty Capital, Inc., a Maryland corporation (the “Company”) – Registration of shares of common stock, $0.05 par value per share (the “Common Stock”), of the Company having an aggregate gross sales price of up to $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 (Registration Nos. 333-220618 and 333-220618-1) filed with the Securities and Exchange Commission (the “Commission”) on September 25, 2017 (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 under 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 Restatement filed with the State Department of Assessments and Taxation of Maryland (the “Department”) on August 21, 2013, Articles of Amendment filed with the Department on May 13, 2014, Articles Supplementary filed with the Department on March 3, 2017, Articles Supplementary filed with the Department on October 2, 2017, Articles of Amendment filed with the Department on December 12, 2018, and Articles of Amendment filed with the Department on April 29, 2019;

 

  (ii)

the Fifth Amended and Restated Bylaws of the Company, dated as of August 10, 2017 (the “Bylaws”);


BALLARD SPAHR LLP

Spirit Realty Capital, Inc.

February 27, 2020

Page 2

 

  (iii)

resolutions adopted by the Board of Directors of the Company (the “Board”) on or as of October 29, 2016, November 12, 2018 and December 4, 2018 and by the ATM Pricing Committee of the Board (the “Pricing Committee”) on or as of February 20, 2019, March 13, 2019, August 12, 2019 and February 26, 2020 (collectively, the “Board Resolutions”), and the form of resolutions to be adopted from time to time by the Pricing Committee (the “Committee Resolutions”, and together with the Board Resolutions, collectively, the “Directors’ Resolutions”);

 

  (iv)

the Registration Statement filed by the Company with the Commission under the Act, the related base prospectus, dated September 25, 2017, and the related prospectus supplement, dated February 27, 2020;

 

  (v)

a fully executed counterpart of the Amended and Restated Equity Distribution Agreement, dated as of February 22, 2019 (the “Original Agreement”), as amended by Amendment No. 1 to the Original Agreement, dated as of February 27, 2020 (“Amendment No. 1” and together with the Original Agreement, collectively, the “Agreement”), by and among the Company, Spirit Realty, L.P., a Delaware limited partnership, and SunTrust Robinson Humphrey, Inc., BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Stifel, Nicolaus & Company, Incorporated and Wells Fargo Securities, LLC, as agents, forward sellers and/or principals, and Bank of America, N.A., The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, Royal Bank of Canada and Wells Fargo Bank, National Association, as forward purchasers;

 

  (vi)

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;

 

  (vii)

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, the Board Resolutions and the Committee Resolutions are true, correct and complete and have not been rescinded or modified, and that the Charter, the Bylaws and the Board Resolutions 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 Committee Resolutions, and the form, approval, execution and delivery of the Agreement; and

 

  (viii)

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.


BALLARD SPAHR LLP

Spirit Realty Capital, Inc.

February 27, 2020

Page 3

 

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, and will 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 document; 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; 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;

 

  (e)

neither the issuance and sale of the Shares pursuant to the Agreement, nor the ownership of the Shares by purchasers thereof, will violate any of the ownership or transfer restrictions or limitations contained in the Charter;

 

  (f)

prior to issuance and sale of any of the Shares, the Committee Resolutions setting forth, with respect to such Shares, the maximum number of 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 Pricing Committee or by unanimous consent of the members of the Pricing Committee given in writing or by electronic transmission;

 

  (g)

the aggregate gross sales price of all of the Shares sold pursuant to the Agreement will not exceed $500,000,000 (including the $253,439,017 aggregate gross sales price of the Shares sold to date), 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;

 

  (h)

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

 

  (i)

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.


BALLARD SPAHR LLP

Spirit Realty Capital, Inc.

February 27, 2020

Page 4

 

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)

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 Pricing Committee 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 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.

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 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.

 

   Very truly yours,
   /s/ Ballard Spahr LLP
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