Healthpeak Properties, Inc. Common Stock ($1.00 par value) AMENDMENT NO. 2 TO AT-THE-MARKET EQUITY OFFERING SALES AGREEMENT
Exhibit 10.1
Common Stock
($1.00 par value)
($1.00 par value)
AMENDMENT NO. 2 TO AT-THE-MARKET EQUITY OFFERING SALES AGREEMENT
May 3, 2024
▇.▇. ▇▇▇▇▇▇ Securities LLC
Barclays Capital Inc.
BNP Paribas Securities Corp.
BofA Securities, Inc.
BTIG, LLC
Capital One Securities, Inc.
Credit Agricole Securities (USA) Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC
▇▇▇▇▇▇▇▇▇ LLC
KeyBanc Capital Markets Inc.
Mizuho Securities USA LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
Nomura Securities International, Inc. (as forward seller through BTIG, LLC)
RBC Capital Markets, LLC
Regions Securities LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Scotia Capital (USA) Inc.
TD Securities (USA) LLC
Truist Securities, Inc.
▇▇▇▇▇ 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC
▇▇▇▇▇▇▇▇▇ LLC
KeyBanc Capital Markets Inc.
Mizuho Markets Americas LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
Nomura Global Financial Products, Inc.
Regions Securities LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Royal Bank of Canada
The Toronto-Dominion Bank
Truist Bank
▇▇▇▇▇ Fargo Bank, National Association
As Forward Purchasers
c/o ▇.▇. ▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain At-the-Market Equity Offering Sales Agreement, dated February 17, 2023, as amended by Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement, dated March 11, 2024 (the “Sales Agreement”), among ▇.▇. ▇▇▇▇▇▇ Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, Mizuho Securities USA LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Nomura Securities International, Inc. (as forward seller through BTIG, LLC as its agent), RBC Capital Markets, LLC, Regions Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and ▇▇▇▇▇ Fargo Securities, LLC, each as sales agent, 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, Mizuho Markets Americas LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Nomura Global Financial Products, Inc., Regions Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Royal Bank of Canada, The Toronto-Dominion Bank, Truist Bank and ▇▇▇▇▇ 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. 2 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
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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:
1.Amendments to Sales Agreement. The parties hereto agree that the Sales Agreement is amended as follows:
(a)As of the date hereof, the parties acknowledge and agree that, by virtue of this Amendment, KeyBanc Capital Markets Inc. has joined as a party to the Sales Agreement in the capacities of Agent and 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 KeyBanc Capital Markets Inc. as a party to the Sales Agreement in its respective capacities).
(b)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 ▇.▇. ▇▇▇▇▇▇ Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, KeyBanc Capital Markets Inc., Mizuho Securities USA LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Nomura Securities International, Inc. (as forward seller through BTIG, LLC as its agent), RBC Capital Markets, LLC, Regions Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and ▇▇▇▇▇ 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, KeyBanc Capital Markets Inc., Mizuho Markets Americas LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Nomura Global Financial Products, Inc., Regions Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Royal Bank of Canada, The Toronto-Dominion Bank, Truist Bank and ▇▇▇▇▇ 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
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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.”
(c)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.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With cc: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇
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:
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▇.▇. ▇▇▇▇▇▇ Securities LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | Mizuho Securities USA LLC ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇.▇▇▇▇▇▇-▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with a copy to: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||||
Barclays Capital Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Syndicate Registration Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Syndicate Desk, with a copy to the Legal Department Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | ||||
BNP Paribas Securities Corp. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇.▇▇▇.▇▇▇@▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ | Nomura Securities International, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Structured Equity Solutions Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ With a copy (which shall not constitute notice) to: Attention: Equities Legal Email: ▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ And to: BTIG, LLC as agent of the forward seller, at the notice addresses provided for BTIG, LLC herein | ||||
BofA Securities, Inc. One Bryant Park Attention: ATM Execution Team, email: ▇▇.▇▇▇_▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | RBC Capital Markets, LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Capital Markets Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
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BTIG, LLC ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ATM Trading Desk Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ with a copy to ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; and ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ | Regions Securities LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ | ||||
Capital One Securities, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. Suite 1830 New Orleans, Louisiana 70170 Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Syndicate Department Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ With a copy to: Legal Department | ||||
Credit Agricole Securities (USA) Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Email: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇-▇▇▇.▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇-▇▇▇.▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | Scotia Capital (USA) Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Capital Markets Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Registration Department | TD Securities (USA) LLC ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Capital Markets Email: ▇▇▇_▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||||
▇▇▇▇▇▇▇▇▇ LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: General Counsel, with a copy to: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ | Truist Securities, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Equity Capital Markets Email: ▇▇.▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ | ||||
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KeyBanc Capital Markets Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Emails: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇; ▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇.▇▇▇; ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ▇▇▇▇▇ Fargo Securities, LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Syndicate Department Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
and | |||||
JPMorgan Chase Bank, National Association ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: EDG Marketing Support Email: ▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇_▇▇_▇▇▇▇▇▇▇▇▇_▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ With a copy to: Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | Mizuho Markets Americas LLC c/o Mizuho Securities USA LLC, as agent ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: US Equity Derivatives Notices Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||||
Bank of America, N.A. One Bryant Park Attention: ▇▇▇▇▇ ▇▇▇▇▇ Email: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Syndicate Desk, with a copy to the Legal Department Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | ||||
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The Bank of Nova Scotia ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ c/o Scotia Capital (USA) Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: US Equity Derivatives Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇ And a copy to: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ | Nomura Global Financial Products, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Structured Equity Solutions Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ With a copy (which shall not constitute notice) to: Attention: Equities Legal Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ And to: BTIG, LLC, at the notice addresses provided for BTIG, LLC herein | ||||
Barclays Bank PLC c/o Barclays Capital Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | Regions Securities LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ | ||||
BNP Paribas ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇.▇▇▇.▇▇▇@▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Syndicate Department Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ With a copy to: Legal Department | ||||
Crédit Agricole Corporate and Investment Bank c/o Credit Agricole Securities (USA) Inc., as agent ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇-▇▇▇.▇▇▇ | Royal Bank of Canada ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Capital Markets Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
8
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Registration Department, with a copy to ▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇.▇▇.▇▇▇ | The Toronto-Dominion Bank c/o TD Securities (USA) LLC, as Agent ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Global Equity Derivatives Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||||
▇▇▇▇▇▇▇▇▇ LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Strategic Equity Transactions Group, with a copy to: ▇▇▇▇-▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ | Truist Bank ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Equity Syndicate Department Email: ▇▇.▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇, with a copy to ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ | ||||
KeyBanc Capital Markets Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Emails: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇; ▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇.▇▇▇; ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | ▇▇▇▇▇ Fargo Bank, National Association ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity Syndicate Department Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
9
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1715
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1715
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
and
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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.”
(d)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 KeyBanc Capital Markets Inc. (as Agent, Forward Seller and Forward Purchaser) has joined as a party to the Sales Agreement, agrees to provide such prospectus supplement to the other parties hereto and ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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. This Amendment may be delivered by any party by facsimile or other electronic transmission.
The words “execution,” “signed,” “signature,” and words of like import in this Amendment or in any other documents entered into or delivered pursuant to or in
10
connection with this Amendment shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
5.Succesors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns.
6.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]
11
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, By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer | |||||
Healthpeak OP, LLC By: Healthpeak Properties, Inc., its Managing Member By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer | |||||
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Accepted as of the date hereof:
▇.▇. ▇▇▇▇▇▇ Securities LLC
As Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
JPMorgan Chase Bank, National Association
As Forward Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Barclays Capital Inc.
As Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Barclays Bank PLC
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
BNP Paribas Securities Corp.
As Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
BNP Paribas
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
BofA Securities, Inc.
As Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
Bank of America, N.A.
As Forward Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
BTIG, LLC
As Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Capital One Securities, Inc.
As Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Credit Agricole Securities (USA) Inc.
As Agent
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director; Head of Investment Banking
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Crédit Agricole Corporate and Investment Bank
As Forward Purchaser
By: Credit Agricole Securities (USA) Inc., as agent
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director; Head of Investment Banking
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC
As Agent and Forward Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
▇▇▇▇▇▇▇▇▇ LLC
As Agent and Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
KeyBanc Capital Markets Inc.
As Agent and Forward Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director, Equity Capital Markets
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Mizuho Securities USA LLC
As Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
Title: Managing Director
Mizuho Markets Americas LLC
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
As Agent and Forward Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Nomura Securities International, Inc.
As Agent (as forward seller)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Nomura Global Financial Products, Inc.
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Representative
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
RBC Capital Markets, LLC
As Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Royal Bank of Canada
As Forward Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Regions Securities LLC
As Agent and Forward Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director - ECM
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
As Agent and Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Scotia Capital (USA) Inc.
As Agent
By: /s/ ▇▇▇ ▇▇▇▇
Name: ▇▇▇ ▇▇▇▇
Title: Managing Director
The Bank of Nova Scotia
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
TD Securities (USA) LLC
As Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
The Toronto-Dominion Bank
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Truist Securities, Inc.
As Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Truist Bank
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
▇▇▇▇▇ Fargo Securities, LLC
As Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇ Fargo Bank, National Association
As Forward Purchaser
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement]
Annex 1
Common Stock
($1.00 par value)
($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, as amended by Amendment No. 1 to the At-the-Market Equity Offering Sales Agreement, dated March 11, 2024, and Amendment No. 2 to the At-the-Market Equity Offering Sales Agreement, dated May 3, 2024 (the “Sales Agreement”), among the Company, Healthpeak OP, LLC, a Maryland limited liability company (the “Operating Company”) and ▇.▇. ▇▇▇▇▇▇ Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Credit Agricole Securities (USA) Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, KeyBanc Capital Markets Inc., Mizuho Securities USA LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Nomura Securities International, Inc., RBC Capital Markets, LLC, Regions Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and ▇▇▇▇▇ 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇▇▇ LLC, KeyBanc Capital Markets Inc., Mizuho Markets Americas LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Nomura Global Financial Products, Inc., Regions Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Royal Bank of Canada, The Toronto-Dominion Bank, Truist Bank and ▇▇▇▇▇ 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.
[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
1 Include only if [●] has an over-allotment option.
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, By ___________________________________ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer | |||||
Healthpeak OP, LLC By: Healthpeak Properties, Inc., its Managing Member By:____________________________________ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer | |||||
Accepted as of the date hereof: [●] By:____________________________________ Name: Title: | |||||