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): July 19, 2013
EXCEL TRUST, INC.
EXCEL TRUST, L.P.
(Exact name of registrant as specified in its charter)
Maryland | 001-34698 (Excel Trust, Inc.) | 27-1493212 (Excel Trust, Inc.) | ||
Delaware | 001-54962 (Excel Trust, L.P.) | 27-1495445 (Excel Trust, L.P.) | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File No.) | (I.R.S. Employer Identification No.) |
17140 Bernardo Center Drive, Suite 300
San Diego, California 92128
(Address of principal executive offices, including zip code)
Registrants telephone number, including area code: (858) 613-1800
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)) |
Item 8.01 | Other Events. |
As previously reported, on May 2, 2013, Excel Trust, Inc. (the Company) and Excel Trust, L.P. (the Operating Partnership) entered into separate Amended and Restated Sales Agreements (collectively, the Sales Agreements) with each of Barclays Capital Inc., Cantor Fitzgerald & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC, each as sales agents and/or principals (collectively, the Managers). Under the terms of the Sales Agreements, the Company may issue and sell from time to time through or to the Managers, as sales agents and/or principals, shares of the Companys common stock having an aggregate offering price of up to $100 million (the Shares) in at the market offerings as defined in Rule 415 under the Securities Act of 1933, as amended. The issuances and sales under the Sales Agreements have been made pursuant to the Companys existing shelf registration statement on Form S-3 (Registration No. 333-187871).
On June 21, 2013, the Company and the Operating Partnership filed with the Securities and Exchange Commission a new shelf registration statement on Form S-3 (File No. 333-189517) (the Universal Shelf) to replace the Companys existing shelf registration statement relating to the at the market offering program. In connection with the filing and effectiveness of the Universal Shelf, the Company and the Operating Partnership amended the Sales Agreements to reference the Universal Shelf and filed a new prospectus supplement, dated July 19, 2013, relating to the offer and sale of the remaining Shares not yet sold under the at the market program.
Item 9.01 | Financial Statements and Exhibits. |
(d) | The following exhibits are filed herewith: |
Exhibit |
Description of Exhibit | |
5.1 | Opinion of Ballard Spahr LLP | |
23.1 | Consent of Ballard Spahr LLP (contained in the opinion filed as Exhibit 5.1 hereto) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized.
Date: July 19, 2013 | EXCEL TRUST, INC. | |||||
By: | /s/ S. Eric Ottesen | |||||
Name: | S. Eric Ottesen | |||||
Title: | Senior Vice President, General Counsel and Secretary | |||||
EXCEL TRUST, L.P. | ||||||
By: | Excel Trust, Inc. its General Partner | |||||
By: | /s/ S. Eric Ottesen | |||||
Name: | S. Eric Ottesen | |||||
Title: | Senior Vice President, General Counsel and Secretary |
EXHIBIT INDEX
Exhibit |
Description of Exhibit | |
5.1 | Opinion of Ballard Spahr LLP | |
23.1 | Consent of Ballard Spahr LLP (contained in the opinion filed as Exhibit 5.1 hereto) |
Exhibit 5.1
300 East Lombard Street, 18th Floor
Baltimore, MD 21202-3268
TEL 410.528.5600
FAX 410.528.5650
www.ballardspahr.com
July 19, 2013
Excel Trust, Inc.
17140 Bernardo Center Drive, Suite 300
San Diego, California 92128
Re: | Excel Trust, Inc., a Maryland corporation (the Company) Issuance and sale of shares of common stock, par value $0.01 per share (Common Stock), of the Company having an aggregate offering price of up to $100,000,000 (the Shares) to be issued and sold from time to time pursuant to the Sales Agreements (as defined herein) |
Ladies and Gentlemen:
We have acted as Maryland corporate counsel to the Company in connection with the registration of the Shares by the Company under the Securities Act of 1933, as amended (the Act). The Shares were previously registered under the Act pursuant to the Companys Registration Statement on Form S-3 (Registration No. 333-187871), which was initially filed with the United States Securities and Exchange Commission (the Commission) on or about April 11, 2013 (the Prior Registration Statement), and a prospectus supplement dated May 2, 2013, in connection with the Companys entry into the Sales Agreements. On or about June 21, 2013, the Company and Excel Trust, L.P., a Delaware limited partnership of which the Company is the sole general partner (the Operating Partnership), filed with the Commission a Registration Statement on Form S-3 (Registration No. 333-189517) to replace the Prior Registration Statement (as amended, the New Registration Statement), which New Registration Statement was declared effective by the Commission on the date hereof. As of the date hereof, shares of Common Stock of the Company having an aggregate offering price of up to $95,035,421 (the Remaining Shares), which constitute a portion of the Shares, remain available for issuance and sale from time to time pursuant to the Sales Agreements, the New Registration Statement and the New Prospectus Supplement (as defined herein). 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 15, 2009, Articles of Amendment and Restatement filed with the Department on April 15, 2010, Articles Supplementary filed with the Department on January 28, 2011 and Articles Supplementary filed with the Department on January 30, 2012; |
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BALLARD SPAHR LLP
Excel Trust, Inc.
July 19, 2013
Page 2
(ii) | the Bylaws of the Company, as adopted as of December 16, 2009, as amended and restated pursuant to the Amended and Restated Bylaws of the Company, on or as of April 15, 2010 (the Bylaws); |
(iii) | the Written Consent of Board of Directors in Lieu of Organizational Meeting of the Company, dated as of December 16, 2009 (the Organizational Minutes); |
(iv) | resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, dated as of February 24, 2012, March 9, 2012, August 6, 2012, April 9, 2013, May 2, 2013 and June 14, 2013 (collectively, the Directors Resolutions); |
(v) | each Amended and Restated Sales Agreement, dated as of May 2, 2013, by and among the Company, the Operating Partnership and each of Barclays Capital Inc., Cantor Fitzgerald & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC, as agents and/or principals (collectively, the Agents), and each Amendment No. 1 to Amended and Restated Sales Agreement, dated as of July 19, 2013, by and among the Company, the Operating Partnership and each of the Agents (collectively, the Sales Agreements); |
(vi) | a certificate of Spencer G. Plumb, President and Chief Operating Officer of the Company, and S. Eric Ottesen, Senior Vice President, General Counsel and Secretary of the Company, dated as of a recent date (the Officers Certificate), to the effect that, among other things, the Charter, the Bylaws, the Organizational Minutes and the Directors Resolutions are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officers Certificate, and certifying as to the approval, execution and delivery of the Sales Agreements; |
(vii) | the New Registration Statement, including all amendments thereto, the final base prospectus, dated July 19, 2013, and the related prospectus supplement, dated July 19, 2013 (the New Prospectus Supplement), each in substantially the form filed with the Commission pursuant to the Act; |
(viii) | 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 |
(ix) | 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. |
BALLARD SPAHR LLP
Excel Trust, Inc.
July 19, 2013
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 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; the form and content of any Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; any of the Documents submitted to us as certified 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; 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) | none of the Remaining Shares will be issued, sold or held in violation of any restriction or limitation on ownership and transfer contained in the Charter; |
(f) | the aggregate offering price of all of the Remaining Shares issued and sold pursuant to the Sales Agreements will not exceed $95,035,421, and the aggregate number of Shares issued and sold pursuant to the Sales Agreements will not exceed the maximum number authorized for issuance and sale in the Directors Resolutions; |
(g) | the consideration per share to be received by the Company for each Remaining Share issued and sold pursuant to the Sales Agreements will be determined in accordance with, and will not be less than the minimum consideration per share set forth in, the Directors Resolutions; |
(h) | from May 2, 2013 through the date hereof, 346,800 shares of Common Stock in the aggregate have been issued and sold pursuant to the Sales Agreements for a total aggregate offering price of $4,964,579; and |
(i) | upon the issuance of the Remaining Shares subsequent to the date hereof, the total number of shares of Common Stock of the Company issued and outstanding on the date subsequent to the date hereof on which any Remaining Shares are issued, after giving effect to such issuance of such Remaining 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
Excel Trust, Inc.
July 19, 2013
Page 4
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 Remaining Shares have been duly authorized and, when issued and delivered against payment therefor and otherwise in accordance with the terms of the Sales Agreements and the Directors Resolutions, will be validly issued, fully paid and non-assessable. |
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 any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
This opinion letter is issued as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our attention. We assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we become aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed herein after the date hereof.
We consent to your filing this opinion as an exhibit to the New 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 Remaining Shares. We also consent to the identification of our firm as Maryland counsel to the Company in the section of the New 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