Form S-11MEF VICI PROPERTIES INC.
As filed with the Securities and Exchange Commission on January 31, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-11
FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933
OF SECURITIES OF CERTAIN REAL ESTATE COMPANIES
VICI PROPERTIES INC.
(Exact name of registrant as specified in governing instruments)
8329 W. Sunset Road, Suite 210
Las Vegas, Nevada 89113
(702) 820-3800
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Edward B. Pitoniak
Chief Executive Officer
VICI Properties Inc.
8329 W. Sunset Road, Suite 210
Las Vegas, Nevada 89113
(702) 820-3800
(Name, address, including zip code, and telephone number, including area code, of agent for service)
with a copy to:
| Todd E. Lenson, Esq. Jordan M. Rosenbaum, Esq. Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York 10036 (212) 715-9100 |
Edward F. Petrosky, Esq. Bartholomew A. Sheehan, III Esq. Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the Securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒ Registration No. 333-221997
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
| 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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
Amount to be Registered(1)(2) |
Proposed Maximum |
Proposed Maximum Aggregate Offering Price(3) |
Amount of Registration Fee | ||||
| Common Stock |
12,075,000 |
$20.00 | $241,500,000 | $30,066.75(4) | ||||
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| (1) | Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(a) of the Securities Act of 1933, as amended. |
| (2) | Includes shares subject to the underwriters’ overallotment option to purchase additional shares from us, if any. |
| (3) | Calculated pursuant to Rule 457(a) of the Securities Act of 1933, as amended. |
| (4) | The registrant previously registered an aggregate of $1,207,500,000 of its shares on the registrant’s Registration Statement on Form S-11 (File No. 333-221997) declared effective on January 31, 2018, for which a filing fee of $150,333.75 was previously paid. |
This registration statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE
This Registration Statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), to register an additional 12,075,000 shares of common stock, $0.01 par value per share, having a maximum aggregate offering price of $241,500,000, comprising the same class of securities covered by an earlier Registration Statement on Form S-11 (File No. 333-221997), as amended (the “Prior Registration Statement”), filed by VICI Properties Inc. with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act. The contents of the Prior Registration Statement, including all exhibits thereto, are incorporated by reference into this Registration Statement.
The required opinions and consents are listed on an Exhibit Index attached hereto and filed herewith.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 36. | Financial Statements and Exhibits. |
(B) Exhibits. The following exhibits are filed as part of, or incorporated by reference into, this Registration Statement on Form S-11:
II-1
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Las Vegas, Nevada, on January 31, 2018.
| VICI Properties Inc. | ||
| By: | /s/ Edward B. Pitoniak | |
| Name: Edward B. Pitoniak | ||
| Title: Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated, on January 31, 2018.
| Name |
Title | |
| /s/ Edward B. Pitoniak |
Chief Executive Officer (Principal Executive Officer) and Director | |
| Edward B. Pitoniak | ||
| /s/ David Kieske |
Chief Financial Officer (Principal Financial Officer) | |
| David Kieske | ||
| /s/ Kenneth J. Kuick |
Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | |
| Kenneth J. Kuick | ||
| * |
Chair of the Board of Directors | |
| James Robert Abrahamson | ||
| * |
Director | |
| Eugene Irwin Davis | ||
| * |
Director | |
| Eric Littmann Hausler | ||
| * |
Director | |
| Craig Macnab | ||
| * |
Director | |
| Michael David Rumbolz | ||
*By:
| /s/ Edward B. Pitoniak Edward B. Pitoniak |
Attorney-in-fact for the persons indicated |
II-2
Exhibit 5.1
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300 East Lombard Street, 18th Floor
Baltimore, MD 21202-3268
TEL 410.528.5600
FAX 410.528.5650
www.balladspahr.com
January 31, 2018
VICI Properties Inc.
8329 W. Sunset Road, Suite 210
Las Vegas, Nevada 89113
| Re: | VICI Properties Inc., a Maryland corporation (the “Company”) – Registration Statement on Form S-11, as amended, pertaining to the issuance and sale by the Company of up to 12,075,000 shares (the “Shares”) of common stock, par value $0.01 per share (the “Common Stock”), of the Company |
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 pursuant to a Registration Statement on Form S-11 filed or to be filed with the Securities and Exchange Commission (the “Commission”) on or about the date hereof pursuant to Rule 462(b) under the Act (the “Rule 462(b) 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 Incorporation filed with the State Department of Assessments and Taxation of Maryland (the “Department”) on May 5, 2017, and Articles of Amendment and Restatement filed with the Department on October 7, 2017; |
| (ii) | the Bylaws of the Company, adopted on or as of May 5, 2017 (the “Original Bylaws”), and the Amended and Restated Bylaws of the Company, effective as of October 7, 2017 (the “Amended and Restated Bylaws” and together with the Original Bylaws, the “Bylaws”); |
| (iii) | the Unanimous Written Consent of the Board of Directors of VICI Properties Inc., dated as of May 5, 2017 (the resolutions contained therein, the “Organizational Resolutions”); |
VICI Properties Inc.
January 31, 2018
Page 2
| (iv) | resolutions adopted by the Board of Directors of the Company (the “Board of Directors”) on or as of May 5, 2017, October 5, 2017, December 8, 2017 and January 19, 2018 (the “Existing Directors’ Resolutions”, and together with the Organizational Resolutions and the Final Determinations (as defined herein), the “Directors’ Resolutions”); |
| (v) | resolutions adopted by the sole stockholder of the Company on or as of October 5, 2017 (the “Stockholder Resolutions”); |
| (vi) | the Rule 462(b) Registration Statement, including the Company’s Registration Statement on Form S-ll, filed with the Commission on or about December 12, 2017, as amended (Registration No. 333-21197), which is incorporated by reference into the Rule 462(b) Registration Statement (the “Prior Registration Statement”), and the related form of prospectus included therein, in substantially the form filed with the Commission pursuant to the Act; |
| (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; |
| (viii) | a Certificate of Officers of the Company, dated as of a recent date (the “Officers’ Certificate”), certifying that, as a factual matter, the Charter, the Bylaws and the Directors’ Resolutions are true, correct and complete, and have not been rescinded or modified except as noted therein, and as to the manner of adoption of the Directors’ Resolutions; and |
| (ix) | 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. |
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; 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; |
VICI Properties Inc.
January 31, 2018
Page 3
| (d) | the Officers’ Certificate and all other certificates submitted to us are, as to factual matters, true and correct both when made and as of the date hereof; |
| (e) | none of the Shares will be issued or transferred in violation of the provisions of Article VII or Article VIII of the Charter relating to restrictions on ownership and transfer of capital stock, and gaming and regulatory matters, respectively; |
| (f) | the Company has not, and is not required to be, nor will it be required to be upon consummation of the issuance of the Shares, registered under the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder; and |
| (g) | prior to the issuance of the Shares subsequent to the date hereof, the Board of Directors, or a duly authorized committee thereof, will adopt, or will have adopted, resolutions which establish the consideration to be received by the Company for the issuance and sale of the Shares (the “Final Determinations”). |
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 issuance of the Shares has 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 the consideration therefor as provided in, and in accordance with, the Directors’ Resolutions, such Shares 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 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.
VICI Properties Inc.
January 31, 2018
Page 4
We consent to the incorporation by reference of this opinion in the Rule 462(b) 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 Prior Registration Statement entitled “Legal Matters,” which is incorporated by reference into the Rule 462(b) Registration Statement. 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
Kramer Levin Naftalis & Frankel LLP
January 31, 2018
VICI Properties Inc.
8329 W. Sunset Road, Suite 210
Las Vegas, Nevada 89113
Ladies and Gentlemen:
We have acted as special tax counsel to VICI Properties Inc., a Maryland corporation (“VICI”), in connection with the initial public offering (the “Offering”) by VICI of its common stock (the “VICI Common Stock”) pursuant to its Registration Statement on Form S-11 pursuant to Rule 462(b) (the “Registration Statement”) which incorporates by reference the contents of VICI’s previously filed Registration Statement on Form S-11 (Registration No. 333-221997), as amended or supplemented, including the prospectus forming a part thereof (the “Prior Registration Statement”).
Capitalized terms used herein and not otherwise defined shall have the same meanings ascribed to them in the Prior Registration Statement.
We have been asked to provide our opinion (the “Opinion”) as to (i) VICI’s qualification for U.S. federal income tax purposes as a real estate investment trust (a “REIT”), as defined under Section 856 of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) the discussion in the Prior Registration Statement under the caption “Material U.S. Federal Income Tax Considerations” and its incorporation by reference into the Registration Statement.
In connection with rendering the Opinion herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents (the “Transaction Documents”):
| a) | the Third Amended Joint Plan of Reorganization of Caesars Entertainment Operating Company, Inc., et. al., under Chapter 11 of the Bankruptcy Code, dated January 13, 2017 (the “Plan of Reorganization”), |
| b) | the Articles of Amendment and Restatement of VICI, |
| c) | the Amended and Restated Bylaws of VICI, |
| d) | the Amended and Restated Agreement of Limited Partnership of VICI Properties L.P., |
| e) | the Registration Statement, |
| f) | the Prior Registration Statement, |
| g) | the documents that effectuate, or were entered into in connection with the purchase and lease of the Harrah’s Las Vegas property by a subsidiary of VICI, including the HLV Purchase Agreement and the HLV Lease Agreement, and |
| h) | the documents that effectuate, or were entered into pursuant to, the Plan of Reorganization. |
We have also examined the representation letter dated as of the date hereof, containing certain representations by an officer of VICI (the “Representation Letter”) and such other documents, records and papers as we have deemed necessary or appropriate in order to give the Opinion set forth herein. In such examination, we have not made an independent investigation of the facts or representations set forth in any of the Transaction Documents that
we have examined, except to the extent that we have deemed necessary in our professional judgment or as you have specifically requested. Consequently, in addition to the assumptions set forth in the Representation Letter, we have assumed in rendering our Opinion, with your consent, that: (i) no party to any Transaction Document has amended, waived or otherwise modified, or will amend, waive or otherwise modify, any material term or condition set forth therein, and each Transaction Document has been duly authorized, executed and delivered by each party thereto, (ii) there are no agreements, arrangements, or understandings among the parties that supplement or are inconsistent with the Transaction Documents, (iii) each of the Offering and VICI’s separation from Caesars has been or will be consummated in accordance with the provisions of the Transaction Documents and as described therein (and no covenants or conditions described therein and affecting this Opinion have been or will be waived or modified), (iv) each provision of the Transaction Documents is valid and enforceable pursuant to its terms, (v) the information presented in such Transaction Documents (including, without limitation, representations set forth therein) or otherwise furnished to us, accurately and completely describes, in all material respects, all facts and other determinations relevant to the Offering and VICI’s separation from Caesars, and the Registration Statement and the Prior Registration Statement are true, complete and correct, (vi) VICI has been organized and operated in accordance with the terms and provisions of the Transaction Documents and the parties to such Transaction Documents have complied and will comply with the terms and provisions of such Transaction Documents, (vii) no action has been, or will be, taken that is inconsistent with any fact, statement, representation, assumption, covenant or agreement contained in any of the Transaction Documents, (viii) the factual statements, representations and covenants (which statements, representations and covenants we have neither investigated nor verified) made by VICI in the Representation Letter are true, complete and correct; provided, that any actions with respect to which such officer of VICI makes representations or covenants in the Representation Letter as to VICI’s intent are assumed to be carried out in accordance with such intent, (ix) any statements and representations made in the Representation Letter that are qualified by the knowledge or belief of any person, or materiality or with comparable qualification are and will be true, complete, and correct as if made without such qualification, (x) all applicable reporting requirements have been or will be satisfied, and (xi) no action will be taken by VICI or any of its subsidiaries after the date hereof that would have the effect of materially altering the facts upon which the Opinion set forth below are based.
Our Opinion is based on the documents and instruments we have reviewed, the information that we have obtained and the assumptions stated herein. A material change or inaccuracy in any of the facts contained in such documents or instruments, such information or assumptions or any of the statements or representations made to us could adversely affect our Opinion. In addition, we note that VICI may engage in transactions in connection with which we have not provided tax advice and have not reviewed, and of which we may be unaware.
Our Opinion is limited to the tax matters specifically stated herein, and we have not been asked to address, nor have we addressed, any other tax matters, and no other opinion should be inferred herefrom. We express no opinion regarding any issue relating to VICI or any investment therein or with respect to any other tax matters, other than as expressly stated above. This Opinion is expressed as of the date hereof, and we are under no obligation to, and we do not intend to, supplement or revise this Opinion to reflect any legal developments or factual matters arising subsequent to the date hereof or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.
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VICI’s continued qualification and taxation as a REIT depends upon its ability to meet, through actual, annual operating results, certain requirements, including requirements relating to asset ownership, income classification, distribution levels and diversity of beneficial ownership, and the various qualification tests imposed under the Code, the results of which will not be reviewed by us. Accordingly, no assurance can be given that the actual results of VICI’s operations for any given taxable year will satisfy the requirements for qualification and taxation as a REIT. This Opinion is not being rendered and shall not be effective to the extent that any fact, matter or event (including the realization of any item or amount of gross income, any asset, the composition of VICI’s stockholders, or the absence of any distribution) occurs or does not occur (other than the transactions occurring pursuant to the Transaction Documents) that adversely affects VICI’s qualification as a REIT.
Based upon and subject to the foregoing and further subject to the matters hereinafter set forth, we are of the opinion that (i) commencing with its taxable year ending December 31, 2017, under applicable U.S. federal income tax law as of the date hereof, VICI has been organized in conformity with the requirements for qualification and taxation as a REIT for U.S. federal income tax purposes, and VICI’s actual and proposed method of operation, as set forth in the Representation Letter, will enable VICI to continue to satisfy the requirements for such qualification and taxation, and (ii) the discussion set forth in the Prior Registration Statement under the caption “Material U.S. Federal Income Tax Considerations” and incorporated by reference into the Registration Statement insofar as such discussion constitutes statements of U.S. federal income tax law or legal conclusions, constitutes our opinion.
Our Opinion does not preclude the possibility that VICI may have to utilize one or more of the various “savings provisions” under the Code that would permit VICI to cure certain violations of the requirements for qualification and taxation as a REIT. Utilizing such savings provisions could require VICI to pay significant penalty or excise taxes.
Our Opinion is based upon the Code, Treasury Regulations promulgated thereunder, judicial opinions, and administrative guidance and such other authorities as we have considered relevant, all as in effect as of the date of this Opinion, any of which may be changed or subject to different interpretation at any time, possibly with retroactive effect. A material change in any of the authorities upon which our Opinion is based could adversely affect Opinion. We undertake no obligation to update this Opinion to reflect any such changes. We also express no opinion as to the laws of any jurisdiction other than the federal income tax laws of the United States.
This Opinion is being delivered to VICI in connection with the Offering and except as provided in the next paragraph, may not be relied on or otherwise used by any other Person or by VICI for any other purpose.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to Kramer Levin Naftalis & Frankel LLP in the Prior Registration Statement and incorporated by reference into the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
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No ruling or advisory opinion has been or will be sought from the Internal Revenue Service (the “Service”) or any other taxing authority as to any of the matters discussed herein. The Opinion expressed herein are not binding on the Service, any other taxing authority or any court, and there can be no assurance that the Service, any other taxing authority or a court of competent jurisdiction will not disagree with such Opinion.
Very truly yours,
/s/ Kramer Levin Naftalis & Frankel LLP
Kramer Levin Naftalis & Frankel LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-11 of our report dated February 14, 2017, relating to the combined financial statements of Caesars Entertainment Outdoor (previously wholly-owned by Caesars Entertainment Operating Company, Inc. (“CEOC”)) (the “Business”) (which report expresses an unqualified opinion and includes explanatory paragraphs relating to: (i) CEOC and the entities that owned the Business filing for reorganization under Chapter 11 of the United States Bankruptcy Code, (ii) uncertainties that raise substantial doubt about the ability of the Company to continue as a going concern as a result of several issues that had to be resolved before CEOC successfully emerged from bankruptcy, and (iii) that the combined financial statements have been prepared from the separate records maintained by the Business and may not necessarily be indicative of the conditions that would have existed or the results of operations if the Business had been operated as an unaffiliated company) and contained in Registration Statement No. 333-221997 of VICI Properties Inc. on Form S-11.
/s/ Deloitte & Touche LLP
| Las Vegas, Nevada |
| |||
| January 31, 2018 |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-11 of our report dated May 12, 2017, relating to the balance sheet of VICI Properties Inc. (previously wholly-owned by Caesars Entertainment Operating Company, Inc. (“CEOC”)) (the “Company”) (which report expresses an unqualified opinion and includes explanatory paragraphs relating to: (i) CEOC and the entities that owned the Company filing for reorganization under Chapter 11 of the United States Bankruptcy Code, and (ii) uncertainties that raise substantial doubt about the ability of the Company to continue as a going concern as a result of several issues that had to be resolved before CEOC successfully emerged from bankruptcy) and contained in Registration Statement No. 333-221997 of VICI Properties Inc. on Form S-11.
/s/ Deloitte & Touche LLP
| Las Vegas, Nevada |
| |||
| January 31, 2018 |
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-11 of our report dated May 12, 2017, relating to the combined statement of investments of real estate assets to be contributed to VICI Properties Inc. and financial statement schedule (which report expresses an unqualified opinion) and contained in Registration Statement No. 333-221997 of VICI Properties Inc. on Form S-11.
/s/ Deloitte & Touche LLP
| Las Vegas, Nevada |
| |||
| January 31, 2018 |