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 10, 2017
AMERICAN HOMES 4 RENT
(Exact name of registrant as specified in its charter)
Maryland | 001-36013 | 46-1229660 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
30601 Agoura Road, Suite 200 Agoura Hills, California |
91301 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (805) 413-5300
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)) |
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 (§240.12b-2 of this chapter).
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. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On July 10, 2017, American Homes 4 Rent (the Company) and American Homes 4 Rent, L.P., the Companys operating partnership (the Operating Partnership), entered into an Underwriting Agreement (the Underwriting Agreement) with Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Raymond James & Associates, Inc., as representatives (the Representatives) of the several underwriters named therein (the Underwriters), for the sale of 4,600,000 of its 5.875% Series G cumulative redeemable perpetual preferred shares of beneficial interest, par value $0.01 per share (the Series G Preferred Shares). The Company estimates that the net proceeds from the offering, after deducting underwriting discounts and commissions and estimated offering expenses payable by the Company, will be approximately $110.9 million. The offering is expected to close on July 17, 2017, subject to customary closing conditions.
The offering was made pursuant to an automatic shelf registration statement filed with the Securities and Exchange Commission on August 7, 2014 (File No. 333-197921), a base prospectus, dated August 7, 2014, included as part of the registration statement, and a prospectus supplement, dated July 10, 2017, to be filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the Securities Act).
The Company expects to contribute the net proceeds from the offering to the Operating Partnership in exchange for 5.875% Series G cumulative redeemable perpetual preferred operating partnership units. The Operating Partnership intends to use the net proceeds from the contribution to repay indebtedness under the Companys revolving credit facility and term loan facility, to acquire single-family properties and for general corporate purposes, including repurchases of the Companys securities. A copy of the amendment to the Agreement of Limited Partnership of the Operating Partnership relating to the 5.875% Series G cumulative redeemable perpetual preferred operating partnership units is filed as Exhibit 10.1.
The Company and the Operating Partnership made certain customary representations, warranties and covenants concerning the Company, the Operating Partnership and the registration statement in the Underwriting Agreement and also agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act, or to contribute to payments the Underwriters may be required to make in respect of those liabilities.
The Underwriters have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with the Company or its affiliates. The Underwriters have received, and may in the future receive, customary fees and commissions for these transactions.
A copy of the Underwriting Agreement is attached to this report as Exhibit 1.1 and incorporated herein by reference. The summary set forth above is qualified in its entirety by reference to Exhibits 1.1 and 10.1.
Item 3.03. Material Modification to Rights of Security Holders.
Upon issuance of the Series G Preferred Shares referenced in Item 5.03 below, the ability of the Company to make distributions with respect to, or redeem, purchase or acquire, or make a liquidation payment on, any other shares of beneficial interest of the Company ranking junior to or on a parity with the Series G Preferred Shares, will be subject to certain restrictions in the event that the Company does not declare distributions on the Series G Preferred Shares during any distribution period. The terms of the Series G Preferred Shares are set forth in the Articles Supplementary to the Companys Declaration of Trust, as amended, that are filed as Exhibit 3.1 hereto and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a) | Under the Companys Declaration of Trust, as amended, the Board of Trustees is authorized without further shareholder action to provide for the issuance of up to 100,000,000 preferred shares of beneficial interest. On July 11, 2017, the Company filed with the Maryland State Department of Assessments and Taxation, Articles Supplementary designating 4,600,000 of the Companys preferred shares of beneficial interest as 5.875% Series G Preferred Shares. |
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
Description | |
1.1 | Underwriting Agreement, dated July 10, 2017, by and among the Company, the Operating Partnership and the Representatives of the Underwriters. | |
3.1 |
Articles Supplementary for the Series G Preferred Shares. | |
5.1 | Opinion of Hogan Lovells US LLP regarding the legality of the Series G Preferred Shares. | |
10.1 | Fourteenth Amendment to Agreement of Limited Partnership of American Homes 4 Rent, L.P. | |
23.1 | Consent of Hogan Lovells US LLP (included in Exhibit 5.1). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 12, 2017 | AMERICAN HOMES 4 RENT | |||||
By: | /s/ Stephanie Heim | |||||
Stephanie Heim | ||||||
Executive Vice President Counsel and Assistant Secretary |
EXHIBIT INDEX
Exhibit No. |
Description | |
1.1 | Underwriting Agreement, dated July 10, 2017, by and among the Company, the Operating Partnership and the Representatives of the Underwriters. | |
3.1 | Articles Supplementary for the Series G Preferred Shares. | |
5.1 | Opinion of Hogan Lovells US LLP regarding the legality of the Series G Preferred Shares. | |
10.1 | Fourteenth Amendment to Agreement of Limited Partnership of American Homes 4 Rent, L.P. | |
23.1 | Consent of Hogan Lovells US LLP (included in Exhibit 5.1). |
Exhibit 1.1
Execution Version
American Homes 4 Rent
4,600,000
5.875% Series G Cumulative Redeemable Perpetual
Preferred Shares of Beneficial Interest,
$0.01 par value per share
Underwriting Agreement
July 10, 2017
Wells Fargo Securities, LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Raymond James & Associates, Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Wells Fargo Securities, LLC
550 South Tryon Street
Charlotte, NC 28202
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
c/o Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
American Homes 4 Rent, a Maryland real estate investment trust (the Company), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the Underwriters) for whom you are acting as representatives (the Representatives), an aggregate of 4,600,000 5.875% Series G cumulative redeemable perpetual preferred shares of the Company, par value $0.01 per share (the Series G Preferred Shares) (the Shares).
Concurrently with the Time of Delivery (as defined herein), the Company will contribute the net proceeds from the sale of the Shares sold by the Company hereunder to American Homes 4 Rent, L.P., a Delaware limited partnership (the Operating Partnership), of which the Company is the general partner, in exchange for 5.875% Series G cumulative redeemable perpetual preferred units of limited partnership interest of the Operating Partnership (the Series G Preferred Units).
1. The Company and the Operating Partnership jointly and severally represent and warrant to, and agree with, each of the Underwriters that:
(i) An automatic shelf registration statement as defined under Rule 405 under the Securities Act of 1933, as amended (the Act), on Form S-3 (File No. 333-197921) in respect of the Shares has been filed with the Securities and Exchange Commission (the Commission) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective upon filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the Companys knowledge, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the Basic Prospectus; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Shares filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a Preliminary Prospectus; the various parts of such registration statement, including all exhibits thereto and including any prospectus supplement relating to the Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the Registration Statement; the Basic Prospectus, as amended and supplemented by the Preliminary Prospectus immediately prior to the Applicable Time (as defined in Section 1(iii) hereof), is hereinafter called the Pricing Prospectus; the form of the final prospectus relating to the Shares filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the Prospectus; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Basic Prospectus, such Pricing Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Shares filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), and incorporated therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any issuer free writing prospectus as defined in Rule 433 under the Act relating to the Shares is hereinafter called an Issuer Free Writing Prospectus);
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(ii) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through the Representatives expressly for use therein;
(iii) For the purposes of this Agreement, the Applicable Time is 3:30 P.M. (New York City time) on the date of this Agreement; the Pricing Prospectus, as of the Applicable Time, as supplemented by the information listed on Schedule II(c) hereto, taken together (collectively, the Pricing Disclosure Package), did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not conflict with the information contained in the Registration Statement, the Basic Prospectus, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, each as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through the Representatives expressly for use therein;
(iv) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein; and no such documents were filed with the Commission since the Commissions close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b) hereto;
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(v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through the Representatives expressly for use therein;
(vi) The Company is a real estate investment trust duly organized and validly existing and in good standing under the laws of the State of Maryland, with requisite real estate investment trust power and authority to own, lease or operate its properties and to conduct its business as described in the Pricing Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby (including the issuance, sale and delivery of the Shares); each direct or indirect subsidiary of the Company listed on Schedule III hereto (each a Company Subsidiary) is duly organized and validly existing as a corporation, limited liability company or limited partnership, as applicable, in good standing under the laws of the state of its incorporation or organization, as applicable, with requisite corporate, limited liability company or limited partnership power and authority to own, lease or operate its properties and to conduct its business as described in the Pricing Prospectus, and the Operating Partnership has full limited partnership power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; the Company Subsidiaries are the only subsidiaries, direct or indirect, of the Company; no Company Subsidiary is currently prohibited, directly or indirectly, from paying any dividends or distributions to the Company, from repaying to the Company any loans or advances to such Company Subsidiary from the Company or from transferring any of such Company Subsidiarys property or assets to the Company or any other Company Subsidiary; all of the outstanding limited liability company or partnership interests, as the case may be, of each of the Company Subsidiaries are, except as described in the Pricing Prospectus, owned by the Company or another Company Subsidiary free and clear of all liens, encumbrances and equities and claims;
(vii) The Company had, as of the date indicated in the Pricing Prospectus and at the Time of Delivery, the duly authorized capitalization set forth in both the Pricing Prospectus and the Prospectus under the caption Capitalization after giving effect to the adjustments set forth thereunder; all of the issued and outstanding Class A common shares of beneficial interest of the Company, Class B common shares of beneficial interest of the Company, Series A participating preferred shares of beneficial interest of the Company, Series B participating preferred shares of beneficial interest of the Company, Series C participating preferred shares of beneficial interest of the Company, Series D perpetual preferred shares of beneficial interest of the Company, Series E perpetual preferred shares of beneficial interest of the Company and Series F perpetual preferred shares of beneficial interest of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and have not been issued in violation of or subject to any preemptive right or other similar right of shareholders arising by operation of law, under the charter or bylaws, each as amended, of the Company, under any agreement to which the Company is a party or otherwise; all of the ownership interests of each Company Subsidiary, including the outstanding Class A common units of limited partnership interest of the Operating Partnership, the Class B common units of limited
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partnership interest of the Operating Partnership, the Series C convertible units of limited partnership interest of the Operating Partnership, the Series D convertible units of limited partnership interest of the Operating Partnership, the Series E convertible units of limited partnership interest of the Operating Partnership and the Series F convertible units of limited partnership interest of the Operating Partnership have been duly and validly authorized and issued and unitholders have no obligation to make any further payments for the purchase of such units or contributions to the Operating Partnership solely by reason of their ownership of such units and have not been issued in violation of or subject to any preemptive right or other similar right of unitholders arising by operation of law, under the Agreement of Limited Partnership, dated as of November 21, 2012, as amended, by and among the Company, as the general partner of the Operating Partnership, and the limited partners listed therein (as amended from time to time, the Operating Partnership Agreement), or under any agreement to which the Operating Partnership is a party or otherwise; except as disclosed in or contemplated by the Pricing Prospectus and the Prospectus, there are no outstanding (i) securities or obligations of the Company or any Company Subsidiary convertible into or exchangeable for any shares of beneficial interest (or limited liability company or partnership interests, as applicable) of the Company or any such Company Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Company Subsidiary any such shares of beneficial interest (or limited liability company or partnership interests, as applicable) or any such convertible or exchangeable securities or obligations or (iii) obligations of the Company or any such Company Subsidiary to issue or sell any shares of beneficial interest (or limited liability company or partnership interests, as applicable), any such convertible or exchangeable securities or obligation, or any such warrants, rights or options;
(viii) The Shares have been duly authorized for issuance, sale and delivery pursuant to this Agreement and, when issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim; the issuance, sale and delivery of the Shares by the Company are not subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders arising by operation of law, under the charter or bylaws, as amended, of the Company, under any agreement to which the Company is a party or otherwise; and the form of certificates, if any, for the Shares conforms to the law of the jurisdiction of the Companys formation and to any requirements of the Companys charter, as amended;
(ix) The Series G Preferred Units that will be exchanged for the net proceeds from the sale of the Shares by the Company hereunder have been duly authorized for issuance and delivery by the Operating Partnership to the Company and, when issued and delivered by the Operating Partnership to the Company, will be duly and validly issued and unitholders have no obligation to make any further payments for the purchase of such units or contributions to the Operating Partnership solely by reason of their ownership of such units, free and clear of any pledge, lien, encumbrance, security interest or other claim; the issuance and delivery of such Series G Preferred Units by the Operating Partnership are not subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right of unitholders arising by operation of law, under the Operating Partnership Agreement, under any agreement to which the Operating Partnership is a party or otherwise;
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(x) The Company and each Company Subsidiary is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it conducts its business, or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), results of operations or prospects of the Company and the Company Subsidiaries taken as a whole (a Material Adverse Effect);
(xi) The Company and each Company Subsidiary has legal, valid and defensible title to all assets and properties reflected as owned by it in the Pricing Prospectus and the Prospectus (whether through fee ownership or similar rights of ownership), in each case free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and defects, except such as are disclosed in both the Pricing Prospectus and the Prospectus or as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; any real property or personal property held under lease by the Company or any Company Subsidiary is held under a lease that is valid, existing and enforceable by the Company or the Company Subsidiaries, as applicable, with such exceptions as are disclosed in the Pricing Prospectus and the Prospectus or as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; neither the Company nor any Company Subsidiary has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Company Subsidiary under any such lease, with such exceptions as are disclosed in the Pricing Prospectus and the Prospectus or as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; no tenant under any lease to which the Company or any Company Subsidiary leases any portion of its property is in default under such lease, except as could not otherwise be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect; neither the Company nor any Company Subsidiary has knowledge of any pending or threatened condemnation, zoning change or other proceeding or action that will in any manner affect the size of, use of, improvements on, construction on, or access to the properties of any of the Company or any Company Subsidiary except as disclosed in both the Pricing Prospectus and the Prospectus or as could not otherwise be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect; title insurance in favor of the Company or the applicable Company Subsidiary has been obtained with respect to each property owned by any such entity in an amount that is customary for companies engaged in the same or similar businesses, except where the failure to maintain such title insurance could not otherwise be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect; and neither the Company nor any Company Subsidiary has sold or contracted to sell any real property except as disclosed in both the Pricing Prospectus and the Prospectus or as could not otherwise be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect;
(xii) The Company and each Company Subsidiary owns or possesses such licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights, software and design licenses, trade secrets, manufacturing processes, other intangible property rights and know-how (collectively Intangibles), as are necessary to entitle the Company and each Company Subsidiary to conduct their respective businesses described in the Pricing Prospectus and the Prospectus, and none of the Company or any Company Subsidiary has received written notice of any infringement of or conflict with (and, upon due inquiry, none of the Company or any Company Subsidiary knows of any such infringement of or conflict with) asserted rights of others with respect to any Intangibles which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
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(xiii) The Company and the Company Subsidiaries own or have a valid right to access and use all computer systems, networks, hardware, software, databases, websites and equipment used to process, store, maintain and operate data, information and functions used in connection with the business of the Company and the Company Subsidiaries (the Company IT Systems). The Company IT Systems are adequate for, and operate and perform in all material respects as required in connection with, the operation of the business of the Company and the Company Subsidiaries as currently conducted, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(xiv) None of the Company or any Company Subsidiary has violated, or received notice of any violation with respect to, any law, rule, regulation, order decree or judgment applicable to it and its business, including those relating to transactions with affiliates, environmental, safety or similar laws, federal or state laws relating to discrimination in the hiring, promotion or pay of employees, federal or state wages and hours law, the Employee Retirement Income Security Act of 1974, as amended (ERISA), or the rules and regulations promulgated thereunder, except for those violations that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(xv) None of the Company, any Company Subsidiary or any of their respective officers, trustees, directors, agents, employees or affiliates purporting to act on behalf of the Company or any Company Subsidiary, has within the past five years, directly or indirectly, (i) used corporate funds to make any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made or taken an act in furtherance of an offer, promise or authorization of any unlawful payment or benefit to any domestic or foreign governmental official or employee, or other person charged with similar public or quasi-public duties, other than payments required or allowed by applicable law (including the Foreign Corrupt Practices Act of 1977, as amended (the FCPA)), (iii) engaged in any transactions, maintained any bank account or used any corporate funds except for transactions, bank accounts and funds which have been and are reflected in the normally maintained books and records of the Company, (iv) violated or is in violation of any provision of the FCPA or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or any other applicable anti-bribery or anti-corruption law, or (v) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and the Company Subsidiaries have instituted, maintain and enforce, and reasonably expect to continue to maintain and enforce, policies and procedures to ensure compliance with applicable anti-bribery and anti-corruption laws;
(xvi) The Company has made an election to be taxed as a real estate investment trust (a REIT) under Sections 856 through 860 of the provisions of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the Code), commencing with its initial taxable year ending December 31, 2012; as of the Time of Delivery, the Company will be organized in conformity with the requirements for qualification and taxation as a REIT; the proposed method of operation of the Company as described in the Pricing Prospectus and the Prospectus will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code and no actions have been taken (or not taken which are required to be taken) by the Company that could cause the Company to fail to qualify as a REIT; the Company has no intention of changing its operations or engaging in activities that could cause it to fail to qualify, or make economically undesirable its continued qualification, as a REIT;
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(xvii) There are no outstanding loans or advances or guarantees of indebtedness by the Company or any Company Subsidiary to or for the benefit of any of the officers, trustees, directors, affiliates or representatives of the Company or any Company Subsidiary or any of the members of the families of any of them;
(xviii) Except with respect to the Underwriters, none of the Company or any Company Subsidiary has incurred any liability for any finders fees or similar payments in connection with the transactions contemplated hereby;
(xix) None of the Company or any Company Subsidiary is in breach or violation of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach or violation of, or default under) (i) its respective charter (including, with respect to the Companys charter, the Articles Supplementary (as defined below)), bylaws, limited liability company agreement, partnership agreement or other organizational documents, in each case as amended as of the date hereof (collectively, the Charter Documents), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or such Company Subsidiary is a party or by which it or its respective properties may be bound or affected or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Company or any Company Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches, violations or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
(xx) The execution, delivery and performance by the Company and the Operating Partnership of this Agreement and the issuance, sale and delivery of the Shares by the Company, the use of the proceeds from the sale of the Shares as described in the Pricing Prospectus and the Prospectus and the consummation by the Company and the Company Subsidiaries of the transactions contemplated hereby, and the compliance by the Company and the Company Subsidiaries with the terms and provisions hereunder will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Charter Documents of the Company or any Company Subsidiaries, (ii) any provision of any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any Company Subsidiary is a party or by which it or its respective properties may be bound or affected or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Company or any Company Subsidiary, except in the case of clauses (ii) or (iii) for such conflicts, breaches or defaults that have been validly waived or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or result in the creation or imposition of any material lien, charge, claim or encumbrance upon any property or asset of the Company or any Company Subsidiary;
(xxi) (i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership and constitutes a legal, valid and binding agreement of the Company and the Operating Partnership, and (ii) the Articles Supplementary to the Companys Amended and Restated Declaration of Trust setting forth the terms of the Series G Preferred Shares (the Articles Supplementary) will be, on or prior to the Time of Delivery, duly authorized, executed and filed by the Company with the State Department of Assessments and Taxation of the State of Maryland (the SDAT);
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(xxii) The Shares conform in all material respects to the descriptions thereof contained in both the Pricing Prospectus and the Prospectus;
(xxiii) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance by the Company and the Operating Partnership of this Agreement or the consummation by the Company and the Operating Partnership of the transactions contemplated hereby, or the issuance, sale and delivery of the Shares as contemplated hereby, other than (i) the registration under the Act of the Shares, (ii) the approval by the Financial Industry Regulatory Authority (FINRA) of the underwriting terms and arrangements, if required, and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters;
(xxiv) The Company and each Company Subsidiary have all necessary licenses, permits, certificates, authorizations, consents and approvals and have made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and have obtained all necessary licenses, permits, certificates, authorizations, consents and approvals from other persons required in order to conduct their respective businesses as described in both the Pricing Prospectus and the Prospectus, except to the extent that any failure to have any such licenses, permits, certificates, authorizations, consents or approvals, to make any such filings or to obtain any such licenses, permits, certificates, authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; and none of the Company or any Company Subsidiary is in violation of, or in default under, any such license, permit, certificate, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any Company Subsidiary, the effect of which could reasonably be expected to have a Material Adverse Effect;
(xxv) The copies of all contracts, agreements, instruments, rent rolls and other documents (including governmental licenses, authorizations, permits, consents and approvals and all amendments or waivers relating to any of the foregoing) that have been previously furnished to the Representatives or their counsel are complete and genuine and include all material collateral and supplemental agreements thereto;
(xxvi) Other than as set forth in both the Pricing Prospectus and the Prospectus and other than those that would not, individually or in the aggregate, have a Material Adverse Effect, there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or any Company Subsidiary, threatened against the Company or any Company Subsidiary or any of their respective properties, trustees, directors, officers or affiliates at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency; other than the Underwriters, none of the Company or any Company Subsidiary has authorized anyone other than the Companys trustees and officers to make any representations regarding the offer and sale of the Shares, or regarding the Company or such Company Subsidiary in connection therewith; and none of the Company or any Company Subsidiary has received notice of any order or decree preventing the use of the Pricing Prospectus or the Prospectus or any amendment or supplement thereto;
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(xxvii) Subsequent to the date of the Preliminary Prospectus, and except as may be otherwise stated in both the Pricing Prospectus and the Prospectus, there has not been (i) any event, circumstance or change that has, or could reasonably be expected, individually or in the aggregate, to have, a Material Adverse Effect, (ii) any transaction, other than in the ordinary course of business, which is material to the Company or any Company Subsidiary, contemplated or entered into by the Company or any Company Subsidiary, (iii) any obligation, contingent or otherwise, directly or indirectly incurred by the Company, other than in the ordinary course of business, which is material to the Company or any Company Subsidiary, (iv) any dividend or distribution of any kind declared, paid or made by the Company or any Company Subsidiary on any class of its equity shares (or limited liability company or partnership interests, as applicable) or any purchase by the Company or any Company Subsidiary of any of its outstanding shares of beneficial interest (or limited liability company or partnership interests, as applicable), or (v) any change of the shares of beneficial interest (or limited liability company or partnership interests, as applicable) or indebtedness of the Company or any Company Subsidiary;
(xxviii) Neither the Company nor any Company Subsidiary is nor, upon the sale of the Shares as contemplated herein and the application of the net proceeds therefrom as described in both the Pricing Prospectus and the Prospectus under the caption Use of Proceeds, will be an investment company or an entity controlled by an investment company (as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder);
(xxix) There are no persons with registration or other similar rights to have any securities registered by the Company under the Act other than pursuant to (i) the Registration Rights Agreement, dated June 10, 2013 between the Company and American Homes 4 Rent LLC, as amended (the AH LLC Registration Rights Agreement), and (ii) the Agreement and Plan of Merger, dated as of July 1, 2014, among the Company, AMH Portfolio One, LLC, Beazer Pre-Owned Rental Homes, Inc. and KKR Fund Holdings, L.P. (the Beazer Registration Rights Agreement, and, together with the AH LLC Registration Rights Agreement, the Registration Rights Agreements);
(xxx) None of the independent trustees named in the Pricing Prospectus and the Prospectus has, within the last five years, been employed by or affiliated, directly or indirectly, with the Company or any Company Subsidiary, whether by ownership of, ownership interest in, employment by, any material business or professional relationship with, or serving as an officer, trustee or director of the Company or any Company Subsidiary or any of their respective affiliates other than as disclosed in the Prospectus;
(xxxi) None of the Company, any Company Subsidiary or any of their respective affiliates (i) is required to register as a broker or dealer in accordance with the provisions of the Exchange Act or the rules and regulations thereunder, or (ii) directly, or indirectly through one or more intermediaries, controls or has any other association with (within the meaning of Article 1 of the Bylaws of FINRA) any member firm of FINRA;
(xxxii) None of the Company, any Company Subsidiary or any of their respective directors, trustees, officers, representatives or affiliates has taken, directly or indirectly, any action intended, or that might reasonably be expected, to cause or result, under the Act, the Exchange Act or otherwise, in, or that has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
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(xxxiii) The Company and each Company Subsidiary carries, or is covered by, insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Company) in such amounts and covering such risks as is appropriate for the conduct of their respective businesses and the value of the assets to be held by them upon the consummation of the transactions contemplated by both the Pricing Prospectus and the Prospectus and as is customary for companies engaged in businesses similar to the business of the Company and the Company Subsidiaries, all of which insurance is in full force and effect;
(xxxiv) The consolidated financial statements of the Company, including the notes thereto, included or incorporated by reference in both the Pricing Prospectus and the Prospectus fairly present in all material respects the financial condition of the Company as of the respective dates thereof, and the results of its operations for the periods then ended, correctly reflect and disclose all extraordinary items, and have been prepared in conformity with U.S. generally accepted accounting principles (GAAP) applied on a consistent basis. All disclosures contained in the Registration Statement, the Basic Prospectus, the Pricing Prospectus or the Prospectus regarding non-GAAP financial measures (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Act, to the extent applicable;
(xxxv) Ernst & Young LLP, who has certified certain financial statements included or incorporated by reference in the Pricing Prospectus and the Prospectus, whose reports with respect to such financial statements included or incorporated by reference in the Pricing Prospectus and the Prospectus are included or incorporated by reference in the Pricing Prospectus and the Prospectus and who have delivered the comfort letters referred to in Section 8(d) hereof, are independent registered public accountants with respect to the Company within the meaning of the Act and the rules and regulations of the Commission thereunder. BDO USA, LLP, who has certified certain financial statements included or incorporated by reference in the Pricing Prospectus and the Prospectus, whose reports with respect to such financial statements included or incorporated by reference in the Pricing Prospectus and the Prospectus are included or incorporated by reference in the Pricing Prospectus and the Prospectus and who have delivered the comfort letters referred to in Section 8(e) hereof, are independent registered public accountants with respect to the Company within the meaning of the Act and the rules and regulations of the Commission thereunder;
(xxxvi) [Reserved];
(xxxvii) The Company maintains systems of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by the Companys principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with managements general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, and (v) the interactive data in
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eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Basic Prospectus and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto. Except as disclosed in each of the Pricing Prospectus and the Prospectus, there are no material weaknesses in the Companys internal controls; since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus, there has been no change in the Companys internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting;
(xxxviii) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures are designed to ensure that material information relating to the Company and the Company Subsidiaries is made known to the Companys principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective in all material respects;
(xxxvix) None of the Company, any Company Subsidiary or, to the knowledge of the Company or any Company Subsidiary, any director, trustee, officer, employee, agent or affiliate of the Company or any Company Subsidiary, has made any payment of funds of the Company or any Company Subsidiary or received or retained any funds in violation of any law, rule or regulation, including without limitation the know your customer and anti-money laundering laws of any jurisdiction (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Company Subsidiary or, to the knowledge of the Company or any Company Subsidiary, any employee, agent or affiliate of the Company or any Company Subsidiary, with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Company Subsidiary, threatened;
(xl) None of the Company or any Company Subsidiary or, to the knowledge of the Company or any Company Subsidiary, any director, trustee, officer, agent, employee or affiliate of the Company or any Company Subsidiary is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), the U.S. Department of State (and including, without limitation, the designation as a specially designated national or blocked person), the United Nations Security Council, the European Union, Her Majestys Treasury or other relevant sanctions authority (collectively, Sanctions), nor is controlled by an individual or entity that is currently subject to Sanctions, nor is the Company or any Company Subsidiary located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a Sanctioned Country); and neither the Company nor the Operating Partnership will directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions or any activities in any Sanctioned Country or in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and each Company Subsidiary have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country;
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(xli) Any certificate signed by any officer of the Company or any Company Subsidiary delivered to the Representatives or to counsel for the Representatives pursuant to or in connection with this Agreement shall be deemed a representation and warranty by the Company or such Company Subsidiary to the Representatives as to the matters covered thereby;
(xlii) (i) The Company and the Company Subsidiaries have accurately prepared and timely filed any and all material federal, state, foreign and other tax returns that are required to be filed by them, if any, and have paid or made provision for the payment of all material taxes, assessments, governmental or other similar charges, including without limitation, all material sales and use taxes and all material taxes which the Company and the Company Subsidiaries are obligated to withhold from amounts owing to employees, creditors and third parties, with respect to the periods covered by such tax returns (whether or not such amounts are shown as due on any tax return), except for any such tax, assessment, fine or penalty that is currently being contested in good faith by appropriate actions, (ii) no deficiency assessment with respect to a proposed adjustment of the federal, state, local or foreign taxes of the Company or any Company Subsidiary is pending or, to the best of the knowledge of the Company or any Company Subsidiary, threatened; and (iii) there is no material tax lien, whether imposed by any federal, state, foreign or other taxing authority, outstanding against the assets, properties or business of the Company or any Company Subsidiary;
(xliii) Except as described in both the Pricing Prospectus and the Prospectus or as would not in the aggregate reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) neither the Company nor any Company Subsidiary is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, Hazardous Materials) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, Environmental Laws), (ii) the Company and the Company Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (iii) there are no pending or, to the knowledge of the Company or any Company Subsidiary, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any Company Subsidiary, and (iv) to the knowledge of the Company or any Company Subsidiary, there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any Company Subsidiary relating to Hazardous Materials or any Environmental Laws;
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(xliv) Each employee benefit plan, within the meaning of Section 3(3) of ERISA, that is maintained, administered or contributed to by the Company, any Company Subsidiary or any of their affiliates for employees or former employees of the Company, any Company Subsidiary or any of their affiliates has been maintained in compliance in all material respects with its terms and the requirements of any applicable statutes, orders, rules and regulations, including, but not limited to, ERISA and the Code; no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption, and transactions which, individually or in the aggregate, would not have a Material Adverse Effect, and no such plan is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA;
(xlv) No labor disturbance by or dispute with employees of the Company or any Company Subsidiary exists or, to the knowledge of the Company or any Company Subsidiary, is contemplated or threatened, and none the Company or any Company Subsidiary is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the Companys or the Company Subsidiarys principal suppliers, contractors or customers (including, without limitation, Malibu Management Inc.), except as would not have a Material Adverse Effect;
(xlvi) Nothing has come to the attention of the Company or any Company Subsidiary that has caused the Company or any Company Subsidiary to believe that the statistical and market-related data included in each of the Pricing Prospectus and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects;
(xlvii) No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained in any of the Pricing Prospectus or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith;
(xlviii) Neither the Company nor any of the Company Subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the equity shares (or limited liability company or partnership interests, as applicable) or long-term debt of the Company or any of the Company Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders equity or results of operations of the Company and the Company Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(xlix) The statements set forth in the Pricing Prospectus and the Prospectus under the captions Description of Preferred Shares and Description of Series G Preferred Shares, insofar as they summarize the terms of the Series G Preferred Shares, and under the caption Additional U.S. Federal Income Tax Considerations and in the Tax Summary (as defined in the Pricing Prospectus and the Prospectus), which is incorporated by reference into the Pricing Prospectus and the Prospectus, insofar as they summarize certain provisions of the laws and documents referred to therein, are accurate, complete and fair summaries of the matters referred to therein;
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(l) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Shares, the Company was not an ineligible issuer as defined in Rule 405 under the Act;
(li) Except as contemplated by this Agreement, the Company has not sold, issued or distributed any Series G Preferred Shares, and the Operating Partnership has not sold, issued or distributed any Series G Preferred Units; and
(lii) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Basic Prospectus and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto.
2. Subject to the terms and conditions herein set forth, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price per Share of $24.2125, the number of Shares (to be adjusted by you so as to eliminate fractional shares) set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Shares, the several Underwriters propose to offer the Shares for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by the Underwriters hereunder, in definitive form, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours prior notice to the Company shall be delivered by or on behalf of the Company to the Representatives, through the facilities of the Depository Trust Company (DTC), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the accounts specified by the Company and the Custodian to the Representatives at least forty-eight hours in advance. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery with respect thereto at the office of DTC or its designated custodian (the Designated Office). The time and date of such delivery and payment shall be, with respect to the Shares, 9:30 a.m., New York time, on July 17, 2017 or such other time and date as the Representatives and the Company may agree upon in writing (the Time of Delivery).
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 8(k) hereof will be delivered at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 300 South Grand Avenue, Los Angeles, California, 90071 (the Closing Location), and the Shares will be delivered at the Designated Office, all at the Time of Delivery. For the purposes of this Section 4, New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus required to be filed pursuant to Rule 424(b) under the Act not later than the Commissions close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the last Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Shares by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof;
(c) If by the third anniversary (the Renewal Deadline) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to you. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to you and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be;
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(d) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act;
(g) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus (the Company Lock-Up Period), not to (A) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement, prospectus or prospectus supplement under the Act relating to, any securities of the Company that are substantially similar to the Series G Preferred Shares, including but not limited to any options or warrants to purchase Series G Preferred Shares or any equity securities similar to the Series G Preferred Shares or any securities that are convertible into or exchangeable for, or that represent the right to receive, Series G Preferred Shares or any such substantially similar securities, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (B) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Series G Preferred Shares or any such other securities, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Series G Preferred Shares or such other securities, in cash or otherwise (other than the Shares to be sold hereunder or pursuant to equity incentive plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of the Representatives.
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(h) To furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, shareholders equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its shareholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(i) During a period of three years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company furnished to or filed with the Commission as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission); provided, however, that the Company shall not be required to provide documents (x) that are available on the Companys website or through the Commissions Electronic Data Gathering, Analysis and Retrieval system or (y) the provision of which would violate Regulation FD as promulgated under the Exchange Act unless otherwise disclosed in a manner reasonably designed to provide broad, non-exclusionary distribution of the information to the public;
(j) To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption Use of Proceeds;
(k) To use its best efforts to list the Shares for trading within 30 days following the Time of Delivery, subject to official notice of issuance, on the New York Stock Exchange (the Exchange);
(l) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;
(m) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Companys trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the License); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred; and
(n) To execute, deliver and file with the SDAT the Articles Supplementary prior to the Time of Delivery.
6. (a) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Shares that would constitute a free writing prospectus as defined in Rule 405 under the Act; and each Underwriter represents and agrees that, without the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute a free writing prospectus; any such free writing prospectus the use of which has been consented to by the Company and the Representatives is listed on Schedules II(a) and II(d) hereto;
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(b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Basic Prospectus, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to the Underwriters an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among the Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey and the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any required review by FINRA of the terms of the sale of the Shares up to a maximum aggregate amount of $45,000; (iv) all fees and expenses in connection with listing the Shares on the Exchange; (v) the cost of preparing share certificates, if any; (vi) the cost and charges of any transfer agent or registrar; (vii) the costs and expenses of the Company relating to investor presentations on any road show undertaken in connection with the marketing of the Shares, including without limitation, expenses associated with the production of road show slides and graphics and fees and expenses of any consultants engaged in connection with the road show presentations; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at the Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
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(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, shall have furnished to you such written opinion and negative assurance letter, dated the Time of Delivery, in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Hogan Lovells US LLP, counsel for the Company, shall have furnished to you their written opinion, negative assurance letter and tax opinion substantially in the forms attached as Annexes III(a),(b) and (c) hereto, respectively, dated the Time of Delivery;
(d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Ernst & Young, LLP shall have furnished to you a letter or letters with respect to certain financial information of the Company and the Company Subsidiaries, dated the respective dates of delivery thereof, in form and substance satisfactory to you (the form of the letter delivered prior to the execution of this Agreement is attached as Annex I hereto);
(e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, BDO USA LLP shall have furnished to you a letter or letters with respect to certain financial information of the Company and the Company Subsidiaries, dated the respective dates of delivery thereof, in form and substance satisfactory to you (the form of the letter delivered prior to the execution of this Agreement is attached as Annex II hereto);
(f) (i) Neither the Company nor any Company Subsidiary shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the equity shares (or limited liability company or partnership interests, as applicable) or long-term debt of the Company or any Company Subsidiary or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders equity or results of operations of the Company and the Company Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at the Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
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(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Companys debt securities or preferred shares by any nationally recognized statistical rating organization, as defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companys debt securities or preferred shares;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Exchange or the NASDAQ Global Market; (ii) a suspension or material limitation in trading in the Companys securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at the Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(i) The Company shall have delivered to the Underwriters certificates executed by the chief operating officer and chief financial officer of the Company, dated as of the date this Agreement and as of the Time of Delivery, substantially in the form attached as Annex IV and Annex V, respectively, hereto in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section 5(e) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of the Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery, as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (f) of this Section 8; and
(l) The Shares to be sold at the Time of Delivery shall have been duly listed, subject to official notice of issuance, on the Exchange.
9. (a) The Company and the Operating Partnership agree, jointly and severally, to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 405), directors and officers, agents and employees and each person, if any, who controls, is under common control with or is controlled by, such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of
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a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule 433(d) under the Act (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) to the extent that any such expense is not paid under clause (i) of this Section 9(a), against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, described in clause (i) of this Section 9(a); provided, that (subject to Section 9(d) below) any such settlement is effected with the written consent of the Company, which consent shall not unreasonably be delayed or withheld; provided, however, that for the avoidance of doubt, any indemnification provided under this Section 9(a) shall not be duplicative; and
(iii) to the extent that any such expense is not paid under clause (i) or clause (ii) of this Section 9(a), against any and all expense whatsoever, as incurred (including the fees and disbursements of one counsel (in addition to any local counsel)), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, described in clause (i) of this Section 9(a); provided, however, that for the avoidance of doubt, any indemnification provided under this Section 9(a) shall not be duplicative;
provided, however, that Company and the Operating Partnership shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter agrees to indemnify and hold harmless the Company and its trustees, the Operating Partnership and each officer of the Company who signed the Registration Statement, and each person, if any, who (i) controls the Company or the Operating Partnership within the meaning of Section 15 of the Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company or the Operating Partnership against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule 433(d) under the Act, in reliance upon and in conformity with information relating to the Underwriters and furnished to the Company and the Operating Partnership in writing by any Underwriter through the Representatives expressly for use therein.
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(c) Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly as reasonably practicable after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 9, notify each such indemnifying party of the commencement of such action, but the obligation to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to any indemnified party otherwise than under this Section 9, and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results in the forfeiture or material impairment of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party, and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of legal counsel to the indemnified party) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of legal counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party), or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its written consent. Notwithstanding the foregoing sentence, if an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel for which it is entitled to be reimbursed under this Section 9, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by this Section 9(c) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or
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consent (x) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, and (y) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company and the Operating Partnership, on the one hand, or the Underwriters, on the other hand, the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other hand, will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company and the Operating Partnership and applied towards such losses, claims, liabilities, expenses and damages from persons other than the Underwriters, such as persons who control the Company and the Operating Partnership within the meaning of the Act, officers of the Company who signed the Registration Statement and directors of the Company and the Operating Partnership, who also may be liable for contribution) to which the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other hand, may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand. The relative benefits received by the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the sale of the Shares (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters (before deducting expenses) from the sale of Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other hand, with respect to the statements or omissions that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Operating Partnership, on the one hand, and the Underwriters, on the other hand, agree that it would not be just and equitable if contributions pursuant to this subsection were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this subsection shall be deemed to include, for the purpose of this subsection, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with subsection (c) hereof. Notwithstanding the foregoing provisions of this subsection, no Underwriter shall be required to contribute any amount in excess of the commissions received by such Underwriter under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this subsection, any person who controls a party to this Agreement within the meaning of the Act, and any officers, directors, partners, employees or agents of the Underwriters, will have the same
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rights to contribution as that party, and each officer and director of the Company who signed the Registration Statement will have the same rights to contribution as the Company and the Operating Partnership, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under this subsection, will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under this subsection except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of subsection (c) hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to subsection (c) hereof.
(e) The obligations of the Company and the Operating Partnership under this Section 9 shall be in addition to any liability which the Company and the Operating Partnership may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer, trustee and director of the Company and the Operating Partnership and to each person, if any, who controls the Company or the Operating Partnership within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares that it has agreed to purchase hereunder at the Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Shares, or the Company notifies you that it has so arranged for the purchase of such Shares, you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term Underwriter as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you, the Company as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at the Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
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(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you, the Company as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, rights of contribution, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter or the Company, or any officer or trustee or controlling person of the Company, and shall survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company nor the Operating Partnership shall then be under any liability to any defaulting Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason any Shares are not delivered by or on behalf of the Company as provided herein, the Company and the Operating Partnership will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Operating Partnership shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly.
14. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Fax: 704-410-0326, Attention: Transaction Management; Merrill Lynch, Pierce, Fenner & Smith Incorporated, 50 Rockefeller Plaza, NY1-050-12-02, New York, New York 10020, Fax: (646) 855-5958, Attention: High Grade Transaction Management/Legal; and to Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida 33716, Fax: (727) 567-8058, Attention: General Counsel, Equity Capital Markets; if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth on the cover of the Registration Statement, Attention: Chief Legal Officer.
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15. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Operating Partnership and, to the extent provided in Sections 9 and 11 hereof, the officers or trustees of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the term business day shall mean any day when the Commissions office in Washington, D.C. is open for business.
17. The Company and the Operating Partnership acknowledge and agree that (i) the purchase and sale of the Shares pursuant to this Agreement is an arms-length commercial transaction between the Company and the Operating Partnership, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the Operating Partnership, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or the Operating Partnership with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company or the Operating Partnership except the obligations expressly set forth in this Agreement and (iv) each of the Company and the Operating Partnership has consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the Company and the Operating Partnership agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or the Operating Partnership, in connection with such transaction or the process leading thereto.
18. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Operating Partnership and the Underwriters, or any of them, with respect to the subject matter hereof.
19. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
20. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
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21. The Company, the Operating Partnership and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
22. This Agreement 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 counterparts shall together constitute one and the same instrument.
23. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, tax structure is limited to any facts that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and the Operating Partnership.
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Very truly yours, | ||
American Homes 4 Rent | ||
By: | /s/ David P. Singelyn | |
Name: David P. Singelyn | ||
Title: Chief Executive Officer | ||
American Homes 4 Rent, L.P. | ||
By: | American Homes 4 Rent, its sole | |
General Partner | ||
By: | /s/ David P. Singelyn | |
Name: David P. Singelyn | ||
Title: Chief Executive Officer |
(Signatures Continue on Following Page)
(Signature Page to Underwriting Agreement)
Accepted as of the date hereof | ||
Wells Fargo Securities, LLC | ||
By: | /s/ Carolyn Hurley | |
Name: Carolyn Hurley | ||
Title: Director | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated | ||
By: | /s/ Chris Porter | |
Name: Chris Porter | ||
Title: Managing Director, Investment Banking | ||
Raymond James & Associates, Inc. | ||
By: | /s/ Jamie Graff | |
Name: Jamie Graff | ||
Title: Managing Director, Co-Head of Real Estate Group |
For themselves and as Representatives of the other
Underwriters named on Schedule I hereto.
(Signature Page to Underwriting Agreement)
Exhibit 3.1
AMERICAN HOMES 4 RENT
ARTICLES SUPPLEMENTARY
5.875% SERIES G CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES
AMERICAN HOMES 4 RENT, a Maryland real estate investment trust (the Trust), hereby certifies to the State Department of Assessments and Taxation of Maryland (the SDAT) that:
FIRST: The Articles of Amendment and Restatement of Declaration of Trust of the Trust (the Declaration of Trust) authorize the issuance of 100,000,000 preferred shares of beneficial interest, par value $0.01 per share (the Preferred Shares), issuable from time to time in one or more series, and authorize the Trusts board of trustees (the Board) to classify or reclassify any unissued shares from time to time by setting or changing the preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications, or terms or conditions of redemption of such unissued shares.
SECOND: Under the authority contained in the Declaration of Trust, and pursuant to authority vested by the Board in the Pricing Committee of the Board (the Pricing Committee) in resolutions adopted at a telephonic meeting held on November 1, 2016, the Pricing Committee, by resolution approved at a telephonic meeting held on July 10, 2017, has classified and designated 5.875% Preferred Shares of the Trust as 5.875% Series G Cumulative Redeemable Perpetual Preferred Shares, with the following preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption, which upon any restatement of the Declaration of Trust, shall be deemed to be part of Article VI of the Declaration of Trust, with any necessary or appropriate changes to the enumeration of sections or subsections hereof. Capitalized terms used and not otherwise defined herein have the meanings set forth in the Declaration of Trust.
5.875% Series G Cumulative Redeemable Perpetual Preferred Shares
(1) Designation and Number. A series of Preferred Shares, designated as the 5.875% Series G Cumulative Redeemable Perpetual Preferred Shares (the Series G Preferred Shares), is hereby established. The par value of the Series G Preferred Shares is $0.01 per share. The number of Series G Preferred Shares shall be 4,600,000.
(2) Maturity. The Series G Preferred Shares have no stated maturity and will not be subject to any sinking fund or mandatory redemption.
(3) Ranking. The Series G Preferred Shares will, with respect to rights to receive dividends and to participate in distributions or payments upon any voluntary or involuntary liquidation, dissolution or winding up of the Trust (a Liquidation Event), rank (a) senior to the Common Shares and any other class or series of Equity Shares, now or hereafter issued and outstanding, the terms of which provide that such Equity Shares rank, as to dividend payments and the distribution of assets upon a Liquidation Event, junior to such Series G Preferred Shares (Junior Equity Securities), (b) on parity with any other preferred or convertible preferred securities of the Trust, now or hereafter issued and outstanding other than the securities referred to in clauses (a) and (c) (Parity Equity Securities); and (c) junior to all Equity Shares issued by the Trust with terms specifically providing that such Equity Shares rank senior to the Series G Preferred Shares with respect to rights of dividend payments and the distribution of assets upon a Liquidation Event (Senior Equity Securities). For the avoidance of doubt, the term Equity Shares does not include convertible debt securities, which debt securities would rank senior to the Series G Preferred Shares.
(4) Dividends.
(a) Dividends on each outstanding Series G Preferred Share shall be cumulative from and including July 17, 2017 (the Original Issue Date) and shall be payable (i) for the period from the Original Issue Date to, but excluding, September 30, 2017 on September 30, 2017 to holders of record as of September 15, 2017, and (ii) for each quarterly distribution period thereafter, quarterly in equal amounts in arrears on the last day of each March, June, September and December, commencing on September 30, 2017 (each such day being hereinafter called a Series G Dividend Payment Date) at the then applicable annual rate; provided, however, that if any Series G Dividend Payment Date falls on any day other than a Business Day (as defined herein), the dividend that would otherwise have been payable on such Series G Dividend Payment Date may be paid on the next succeeding Business Day (as defined herein) with the same force and effect as if paid on such Series G Dividend Payment Date, and no interest or other sums shall accrue on the amount so payable from such Series G Dividend Payment Date to such next succeeding Business Day (as defined herein). Each dividend is payable to holders of record as they appear on the share records
of the Trust at 5:00 p.m., New York time, on the record date, which shall be March 15, June 15, September 15 or December 15 immediately preceding the applicable Series G Dividend Payment Date. If such record date is not a Business Day, the record date shall be the immediately preceding Business Day, (each such date, a Record Date). Dividends shall accrue and be cumulative from the most recent Series G Dividend Payment Date to which dividends have been paid (a Prior Dividend Payment Date) (or if no Prior Dividend Payment Date, from the Original Issue Date) to, but excluding, the next Series G Dividend Payment Date, to holders of record as of 5:00 p.m., New York time, on the related Record Date, whether or not in any such dividend period or periods there shall be funds legally available for the payment of such dividends, whether the Trust has earnings or whether such dividends are authorized. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series G Preferred Shares that may be in arrears. Holders of the Series G Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or shares, in excess of full cumulative dividends, as herein provided, on the Series G Preferred Shares. Dividends payable on the Series G Preferred Shares for any period greater or less than a full dividend period will be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) thirty (30) day months. Dividends payable on the Series G Preferred Shares for each full dividend period will be computed by dividing the applicable annual dividend rate by four. After full cumulative distributions on the Series G Preferred Shares have been paid or declared and funds therefor set aside for payment with respect to a dividend period, the holders of Series G Preferred Shares will not be entitled to any further distributions with respect to that dividend period.
(b) On and after the Original Issue Date, holders of the then outstanding Series G Preferred Shares shall be entitled to receive, when, as and if authorized by the Board and declared by the Trust, out of funds legally available for payment of dividends, cumulative cash dividends at the rate of 5.875% per annum on the $25.00 liquidation preference of each Series G Preferred Share (equivalent to $1.46875 per annum per share).
(c) The Board shall not authorize and declare, and the Trust shall not pay or set apart for payment, any dividends on the Series G Preferred Shares at such time as the terms and provisions of any agreement of the Trust, including any agreement relating to the Trusts indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof, or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.
(d) If, for any taxable year, the Trust elects to designate as a capital gain dividend (as defined in Section 857 of the Internal Revenue Code of 1986, as amended) any portion (the Capital Gains Amount) of the dividends (as determined for federal income tax purposes) paid or made available for the year to holders of all classes of the Trusts Equity Shares (the Total Dividends), then, except as otherwise required by applicable law, that portion of the Capital Gains Amount that shall be allocable to the holders of Series G Preferred Shares shall be in proportion to the amount that the total dividends (as determined for federal income tax purposes) paid or made available to the holders of the Series G Preferred Shares for the year bears to the Total Dividends. Except as otherwise required by applicable law, the Trust will make a similar allocation with respect to any undistributed long-term capital gains of the Trust which are to be included in its shareholders long-term capital gains, based on the allocation of the Capital Gains Amount which would have resulted if such undistributed long-term capital gains had been distributed as capital gains dividends by the Trust to its shareholders.
(e) So long as any Series G Preferred Shares are outstanding, the Board shall not authorize and declare, and the Trust shall not pay or set apart for payment, except as described in the immediately following sentence, any dividends on any series or class or classes of Parity Equity Securities for any period unless full cumulative dividends have been declared and paid or are contemporaneously declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series G Preferred Shares for all prior dividend periods. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon the Series G Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Equity Securities shall be authorized and declared ratably in proportion to the respective amounts of dividends accrued and unpaid on the Series G Preferred Shares and such Parity Equity Securities.
(f) So long as any Series G Preferred Shares are outstanding, the Board shall not authorize and declare, and the Trust shall not pay or set apart for payment, any dividends (other than dividends or distributions paid solely in Junior Equity Securities of, or in options, warrants or rights to subscribe for or purchase, Junior Equity Securities) or other distribution upon Junior Equity Securities, nor shall any Junior Equity Securities be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Class A Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Trust or any subsidiary, or a conversion into or exchange for Junior Equity Securities or redemptions for the purpose of preserving the Trusts qualification as a REIT), for any consideration (or any monies to be paid
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to or made available for a sinking fund for the redemption of any such shares) by the Trust, directly or indirectly (except by conversion into or exchange for Junior Equity Securities), unless in each case all cumulative dividends on all outstanding Series G Preferred Shares and any Parity Equity Securities at the time such dividends are payable shall have been paid or set apart for payment for all past dividend periods with respect to the Series G Preferred Shares and all past dividend periods with respect to such Parity Equity Securities.
(g) Any dividend payment made on the Series G Preferred Shares, including any Capital Gains Amounts, shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable.
(h) As used herein, the term Business Day shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York, New York are authorized or required by law, regulation or executive order to close.
(i) As used herein, the term dividend does not include dividends payable solely in Junior Equity Securities on Junior Equity Securities, or in options, warrants or rights to holders of Junior Equity Securities to subscribe for or purchase any Junior Equity Securities.
(5) Liquidation Preference.
(a) In the event of any Liquidation Event, before any payment or distribution of the assets of the Trust shall be made to or set apart for the holders of Junior Equity Securities, the holders of the Series G Preferred Shares shall be entitled to receive (i) a liquidating distribution in the amount of $25.00 per share, plus (ii) an amount per Series G Preferred Share equal to all dividends (whether or not authorized or declared) accrued and unpaid thereon to, but excluding, the date of final distribution to such holders (the Liquidation Preference); but such holders of the Series G Preferred Shares shall not be entitled to any further payment.
(b) If, upon any Liquidation Event, the assets of the Trust, or proceeds thereof, distributable among the holders of the Series G Preferred Shares shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other Parity Equity Securities, then such assets, or the proceeds thereof, shall be distributed among the holders of such Series G Preferred Shares and any such other Parity Equity Securities ratably in accordance with the respective amounts that would be payable on such Series G Preferred Shares and any such other Parity Equity Securities if all amounts payable thereon were paid in full. For the purposes of this paragraph (5), none of (i) a consolidation or merger of the Trust with one or more other entities, (ii) a statutory share exchange or (iii) a voluntary sale, transfer or conveyance of all or substantially all of the Trusts assets, properties or business shall be deemed to be a Liquidation Event of the Trust.
(c) Subject to the rights of the holders of Parity Equity Securities, upon any liquidation, dissolution or winding up of the Trust, after payment shall have been made in full to the holders of the Series G Preferred Shares, as provided in this paragraph (5), any series or class or classes of Junior Equity Securities shall, subject to any respective terms and provisions applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series G Preferred Shares shall not be entitled to share therein.
(d) Written notice of any such liquidation, dissolution or winding up of the Trust, stating the payment date or dates when, and the place or places where the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than thirty (30) nor more than sixty (60) days prior to the payment date stated therein, to each record holder of the Series G Preferred Shares at the respective addresses of such holders as the same shall appear on the share transfer records of the Trust.
(6) Redemption. The Series G Preferred Shares are not redeemable except as provided in this paragraph (6).
(a) Redemption at the Option of the Trust. (i) Except as otherwise permitted by the Declaration of Trust and paragraph (6)(c) hereof, the Trust may not redeem the Series G Preferred Shares until after July 17, 2022 except in limited circumstances relating to the Trust maintaining its qualification as a REIT as set forth in Article VII of the Declaration of Trust and pursuant to the Special Redemption Right (as defined herein). Any time after July 17, 2022, the Trust, at its option, upon giving notice as provided below, may redeem some or all of the Series G Preferred Shares from time to time, at any time, for cash at a redemption price equal to the Liquidation Preference (the Regular Redemption Right).
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(ii) The following provisions set forth the procedures for redemption pursuant to the Regular Redemption Right:
(A) A notice of redemption (which may be contingent upon the occurrence of a future event) shall be mailed, postage prepaid, not less than thirty (30) days nor more than sixty (60) days prior to the redemption date, addressed to the holders of record of the Series G Preferred Shares at their addresses as they appear on the Trusts share transfer records (provided that, if the Series G Preferred Shares are held in book-entry form through The Depository Trust Company, or DTC, the Trust may give such notice in any manner permitted by DTC). A failure to give such notice or any defect in the notice or in its mailing shall not affect the validity of the proceedings for the redemption of any Series G Preferred Shares except as to the holder to whom notice was defective or not given. In addition to any information required by law or by the applicable rules of any exchange upon which the Series G Preferred Shares may be listed for trading, each notice shall state: (1) the redemption date; (2) the number of Series G Preferred Shares to be redeemed and, if less than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; and (4) the place or places where the certificates, if any, evidencing the Series G Preferred Shares are to be surrendered for payment of the redemption price. In the case of any redemption of only part of the Series G Preferred Shares at the time outstanding, the shares to be redeemed shall be selected either pro rata or by lot.
(B) Upon any redemption of Series G Preferred Shares, the Trust shall pay any accrued and unpaid dividends in arrears for any dividend period ending on or prior to the redemption date. If a redemption date falls after a Record Date for a Series G Preferred Shares dividend payment and prior to the corresponding Series G Dividend Payment Date, then each holder of the Series G Preferred Shares at the close of business on such Record Date shall be entitled to the dividend payable on such Series G Preferred Shares on the corresponding Series G Dividend Payment Date notwithstanding the redemption of such Series G Preferred Shares before such Series G Dividend Payment Date. Except as provided above, the Trust shall make no payment or allowance for unpaid dividends, whether or not in arrears, on any Series G Preferred Shares called for redemption.
(C) If full cumulative dividends on the Series G Preferred Shares and any other series or class or classes of Parity Equity Securities have not been paid or declared and set apart for payment, except as otherwise permitted under the Declaration of Trust, the Trust may not purchase, redeem or otherwise acquire Series G Preferred Shares or any Parity Equity Securities other than in exchange for Junior Equity Securities.
(D) On and after the date fixed for redemption, provided that the Trust has made available at the office of the registrar and transfer agent a sufficient amount of cash to effect the redemption, dividends shall cease to accrue on the Series G Preferred Shares called for redemption (except that, in the case of a redemption date after a Record Date and prior to the related Series G Dividend Payment Date, holders of Series G Preferred Shares on the applicable Record Date will be entitled on such Series G Dividend Payment Date to receive the dividend payable on such shares on the corresponding Series G Dividend Payment Date), such shares shall no longer be deemed to be outstanding and all rights of the holders of such shares as holders of Series G Preferred Shares shall cease except the right to receive the cash payable upon such redemption, without interest from the date of such redemption.
(b) Special Redemption Right Upon a Change of Control. (i) Upon the occurrence of a Change of Control (as defined herein), the Trust shall have the option, upon giving notice to the holders of the Series G Preferred Shares as provided below, to redeem all or any part of the Series G Preferred Shares at any time within one hundred twenty (120) days after the date on which the Change of Control has occurred (the Special Redemption Right), for cash equal to the Final Liquidation Preference, to, but excluding, the redemption date (the Special Redemption Price). If, prior to the Change of Control Conversion Date (as defined herein), the Trust exercises its Regular Redemption Right or Special Redemption Right in connection with a Change of Control, holders of Series G Preferred Shares shall not be permitted to exercise their Change of Control Conversion Right (as defined herein).
A Change of Control shall be deemed to have occurred at such time after the Original Issue Date when the following have occurred and are continuing:
(A) the acquisition by any person, including any syndicate or group deemed to be a person under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the Exchange Act), of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of securities of the Trust entitling that person to exercise more than fifty percent (50%) of the total voting power of all shares of beneficial interest of the Trust entitled to vote generally in elections of trustees (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and
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(B) following the closing of any transaction referred to in clause (A) above, neither the Trust nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts representing such securities) listed on the New York Stock Exchange (NYSE), the NYSE MKT or the NASDAQ Stock Market (NASDAQ), or listed on an exchange that is a successor to the NYSE, NYSE MKT or NASDAQ.
(ii) The following provisions set forth the procedures for redemption pursuant to the Special Redemption Right:
(A) A notice of redemption shall be mailed, postage prepaid, not less than thirty (30) nor more than sixty (60) days prior to the redemption date, addressed to the holders of record of the Series G Preferred Shares at their addresses as they appear on the Trusts share transfer records. A failure to give such notice or any defect in the notice or in its mailing shall not affect the validity of the proceedings for the redemption of any Series G Preferred Shares except as to the holder to whom notice was defective or not given. In addition to any information required by law or by the applicable rules of any exchange upon which the Series G Preferred Shares may be listed or admitted to trading, each notice shall state: (1) the redemption date; (2) the special redemption price; (3) a statement setting forth the calculation of such special redemption price in accordance with paragraph 6(b); (4) the number of Series G Preferred Shares to be redeemed; (5) the place or places where the certificates, if any, evidencing the Series G Preferred Shares are to be surrendered for payment of the redemption price; (6) procedures for surrendering noncertificated Series G Preferred Shares for payment of the redemption price; (7) that dividends on the Series G Preferred Shares to be redeemed will cease to accrue on such redemption date except as otherwise provided herein and unless the Trust shall fail to pay the redemption price on such date; (8) that payment of the redemption price and any accrued and unpaid dividends will be made upon presentation and surrender of such Series G Preferred Shares; (9) that the Series G Preferred Shares are being redeemed pursuant to the Special Redemption Right in connection with the occurrence of a Change of Control and a brief description of the transaction or transactions constituting such Change of Control; and (10) that the holders of the Series G Preferred Shares to which the notice relates will not be able to tender such Series G Preferred Shares for conversion in connection with the Change of Control and each Series G Preferred Share tendered for conversion that is selected, prior to the Change of Control Conversion Date (as defined herein), for redemption shall be redeemed on the related redemption date instead of converted on the Change of Control Conversion Date.
(B) Upon the redemption of the Series G Preferred Shares, the Trust shall pay any accrued and unpaid dividends in arrears for any dividend period ending on or prior to the redemption date. If the redemption date falls after a Record Date for a Series G Preferred Shares dividend payment and prior to the corresponding Series G Dividend Payment Date, then each holder of the Series G Preferred Shares at the close of business on such Record Date shall be entitled to the dividend payable on such Series G Preferred Shares on the corresponding Series G Dividend Payment Date notwithstanding the redemption of such Series G Preferred Shares before such Series G Dividend Payment Date. Except as provided above, the Trust shall make no payment or allowance for unpaid dividends, whether or not in arrears, on any Series G Preferred Shares called for redemption.
(C) If full cumulative dividends on the Series G Preferred Shares and any other series or class or classes of Parity Equity Securities have not been paid or declared and set apart for payment, except as otherwise permitted under the Declaration of Trust, the Trust may not purchase, redeem or otherwise acquire Series G Preferred Shares or any Parity Equity Securities other than in exchange for Junior Equity Securities.
(D) On and after the date fixed for redemption, provided that the Trust has made available at the office of the registrar and transfer agent a sufficient amount of cash to effect the redemption, dividends shall cease to accrue on the Series G Preferred Shares called for redemption (except that, in the case of a redemption date after a Record Date and prior to the related Series G Dividend Payment Date, holders of Series G Preferred Shares on the applicable Record Date will be entitled on such Series G Dividend Payment Date to receive the dividend payable on such shares on the corresponding Series G Dividend Payment Date), such shares shall no longer be deemed to be outstanding and all rights of the holders of such shares as holders of Series G Preferred Shares shall cease except the right to receive the cash payable upon such redemption, without interest from the date of such redemption.
(c) Status of Redeemed Series G Preferred Shares. Any Series G Preferred Shares that shall at any time have been redeemed (whether by the Regular Redemption Right or the Special Redemption Right) shall, after such redemption, have the status of authorized but unissued Preferred Shares, without designation as to series until such shares are once more designated as part of a particular series by the Board.
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(7) Voting Rights. Except as otherwise set forth herein or as required by applicable law, the Series G Preferred Shares shall not have any relative, participating, optional or other voting rights or powers, and the consent of the holders thereof shall not be required for the taking of any action by the Trust. In any matter in which the holders of Series G Preferred Shares are entitled to vote, each such holder shall have the right to one vote for each Series G Preferred Share held by such holder.
(a) Right to Elect Two Trustees After Extended Dividend Arrearages.
(i) If and whenever six (6) or more quarterly dividends (whether or not consecutive) payable on the Series G Preferred Shares are in arrears, whether or not authorized or declared, the number of trustees then constituting the Board shall be increased by two and the holders of Series G Preferred Shares, voting together as a class with the holders of any other series of Parity Equity Securities upon which like voting rights have been conferred and are exercisable (any such other series, the Voting Preferred Shares), shall have the right to elect two (2) additional trustees (each, a Preferred Share Trustee) at a special meeting of the holders of the Series G Preferred Shares called upon the request of at least ten percent (10%) of such holders, or at the Trusts next annual meeting and at each subsequent annual meeting of shareholders until all unpaid dividends with respect to the Series G Preferred Shares and such other Voting Preferred Shares have been paid. Whenever all dividend arrearages on the Series G Preferred Shares and the Voting Preferred Shares then outstanding have been paid and full dividends on the Series G Preferred Shares and the Voting Preferred Shares for the then current quarterly dividend period have been paid in full, then the right of the holders of the Series G Preferred Shares and the Voting Preferred Shares to elect two (2) Preferred Share Trustees will cease, the terms of office of the Preferred Share Trustees shall terminate immediately and the number of trustees shall be reduced accordingly; provided, however, the right of the holders of the Series G Preferred Shares and the Voting Preferred Shares to elect the additional trustees will again vest if and whenever six (6) quarterly dividends are in arrears, as described above.
(ii) A Preferred Share Trustee shall be elected by a vote of holders of record (as of the record date for the special or annual meeting, as the case may be) of a majority of the outstanding Voting Preferred Shares. Any of the Preferred Share Trustees elected by holders of the Voting Preferred Shares may be removed at any time with or without cause by the vote of, and may not be removed otherwise than by the vote of, holders of record (as of the record date for the special or annual meeting, as the case may be) of a majority of the outstanding Voting Preferred Shares. So long as a dividend arrearage continues, any vacancy in the office of any Preferred Share Trustee may be filled by written consent of the Preferred Share Trustee remaining in office, or if none remains in office, by a vote of the holders of the Voting Preferred Shares. In no event shall the holders of Series G Preferred Shares be entitled pursuant to these voting rights to elect a trustee that would cause the Trust to fail to satisfy a requirement relating to trustee independence of any national securities exchange on which any class or series of the Trusts shares are listed. In class votes with other Voting Preferred Shares, preferred shares of different series shall vote in proportion to the liquidation preference of the Preferred Shares.
(iii) Special meetings pursuant to this paragraph 7(a) shall be in accordance with the procedures for Shareholder-Requested Special Meetings in the Trusts bylaws; except that the Trust, rather than the holders of Series G Preferred Shares, shall pay all costs and expenses of calling and holding such meeting, including without limitation, the costs of preparing and mailing or delivering notice of such meeting, of renting meeting space for such meeting to be held and of collecting and tabulating votes. At all times that the voting rights conferred by this paragraph 7(a) are exercisable, the holders of Series G Preferred Shares shall have reasonable access to the Preferred Share transfer records of the Trust.
(iv) The provisions of this paragraph 7(a) shall supersede anything inconsistent contained in the Declaration of Trust or bylaws of the Trust.
(b) Supermajority Voting Rights. So long as any Series G Preferred Shares are outstanding, the approval of two-thirds of the votes entitled to be cast by the holders of outstanding Series G Preferred Shares, voting together as a class with the Voting Preferred Shares, either at a meeting of shareholders or by written consent, is required (i) to authorize, create, or increase the number of authorized or issued shares of any class or series of Senior Equity Securities, or to reclassify any authorized Equity Shares of the Trust into such Senior Equity Securities, or to create, authorize or issue any obligation or security convertible into or evidencing the right to purchase such Senior Equity Securities, or (ii) to amend, alter or repeal any provisions of the Declaration of Trust (including these Articles Supplementary), whether by merger, consolidation or otherwise, to affect materially and adversely the voting powers, rights or preferences of the holders of the Series G Preferred Shares, unless in connection with any such amendment, alteration or repeal, the Series G Preferred Shares remain outstanding without the terms thereof being materially changed in any respect adverse to the holders thereof or is converted into or exchanged for preferred shares of the surviving entity having preferences, conversion and other rights, voting powers, restrictions, limitations as to
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dividends, qualifications and terms and conditions of redemption thereof that are substantially similar to those of the Series G Preferred Shares (provided that if such amendment affects materially and adversely the rights, preferences, privileges or voting powers of one or more but not all of the other series of Voting Preferred Shares, the consent of the holders of at least two-thirds of the outstanding shares of each such series so affected is required). However, the Trust may create additional classes of Parity Equity Securities and Junior Equity Securities, amend the Declaration of Trust and these Articles Supplementary to increase the authorized number of Parity Equity Securities (including the Series G Preferred Shares) and Junior Equity Securities and issue additional series of Parity Equity Securities and Junior Equity Securities without the consent of any holder of Series G Preferred Shares.
(c) Effect of Redemption Upon Voting Rights. The foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding Series G Preferred Shares shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been deposited in trust to effect such redemption.
(8) Information Rights. During any period in which the Trust is not subject to Section 13 or 15(d) of the Exchange Act, and any Series G Preferred Shares are outstanding, the Trust will (i) transmit by mail (or other permissible means under the Exchange Act) to all holders of Series G Preferred Shares, as their names and addresses appear in the record books of the Trust and without cost to such holders, copies of the annual reports and quarterly reports that the Trust would have been required to file with the Securities and Exchange Commission (the SEC) pursuant to Section 13 or 15(d) of the Exchange Act if the Trust were subject thereto (other than any exhibits that would have been required) and (ii) promptly, upon request, supply copies of such reports to any prospective holder of Series G Preferred Shares. The Trust will mail (or otherwise provide) the information to the holders of Series G Preferred Shares within fifteen (15) days after the respective dates by which an annual report on Form 10-K or quarterly report on Form 10-Q, as the case may be, would be due if the Trust were subject to Section 13 or 15(d) of the Exchange Act and was required to file such reports with the SEC.
(9) Other Limitations; Ownership and Transfer. The Series G Preferred Shares constitute Equity Shares of the Trust and are governed by and issued subject to all the limitations, terms and conditions of the Declaration of Trust applicable to Equity Shares generally, including but not limited to the terms and conditions (including exceptions and exemptions) of Article VII of the Declaration of Trust applicable to Equity Shares. The foregoing sentence shall not be construed to limit the applicability to the Series G Preferred Shares of any other term or provision of the Declaration of Trust.
(10) Conversion. The Series G Preferred Shares are not convertible into or exchangeable for any other property or securities of Trust, except as provided in this paragraph (10).
(a) Conversion upon a Change of Control.
(i) Upon the occurrence of a Change of Control, each holder of the Series G Preferred Shares shall have the right, subject to the Special Redemption Right of the Trust, to convert some or all of the Series G Preferred Shares held by such holder (the Change of Control Conversion Right) on the relevant Change of Control Conversion Date (as defined herein) into a number of Class A Shares per Series G Preferred Share (the Common Share Conversion Consideration) equal to the lesser of (A) the quotient obtained by dividing (i) the sum of (x) the liquidation preference amount of $25.00 per Series G Preferred Share, plus (y) any accrued and unpaid dividends thereon (whether or not declared) to, but excluding, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a record date for a Series G Preferred Shares dividend payment for which dividends have been declared and prior to the corresponding Series G Preferred Shares dividend payment date, in which case no additional amount for such accrued and unpaid dividend will be included in this sum and such declared dividend will instead be paid, on such dividend payment date, to the holder of record of the Series G Preferred Shares to be converted as of 5:00 p.m. New York City time, on such record date) by (ii) the Class A Share Price (as defined herein) (such quotient, the Conversion Rate), and (B) 2.2242 (the Share Cap), subject to the following:
(A) The Share Cap shall be subject to pro rata adjustments for any share splits (including those effected pursuant to a distribution of the Class A Shares), subdivisions or combinations (in each case, a Share Split) with respect to the Class A Shares as follows: the adjusted Share Cap as the result of a Share Split shall be the number of Class A Shares that is equivalent to the product of (i) the Share Cap in effect immediately prior to such Share Split multiplied by (ii) a fraction, the numerator of which is the number of Class A Shares outstanding after giving effect to such Share Split and the denominator of which is the number of Class A Shares outstanding immediately prior to such Share Split.
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(B) In the case of a Change of Control as a result of which holders of Class A Shares are entitled to receive consideration other than solely Class A Shares, including other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for Class A Shares (the Alternative Form Consideration), a holder of Series G Preferred Shares shall be entitled thereafter to convert (subject to the Trusts Special Redemption Right) such Series G Preferred Shares not into Class A Shares but solely into the kind and amount of Alternative Form Consideration which the holder of Series G Preferred Shares would have owned or been entitled to receive upon such Change of Control as if such holder of Series G Preferred Shares then held the Common Share Conversion Consideration immediately prior to the effective time of the Change of Control (the Alternative Conversion Consideration, and the Common Share Conversion Consideration or the Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the Conversion Consideration).
(C) If the holders of Class A Shares have the opportunity to elect the form of consideration to be received in such Change of Control, the Conversion Consideration shall be deemed to be the kind and amount of consideration actually received by holders of a majority of Class A Shares that voted for such an election (if electing between two types of consideration) or holders of a plurality of Class A Shares that voted for such an election (if electing between more than two types of consideration), as the case may be, and will be subject to any limitations to which all holders of Class A Shares are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable in the Change of Control.
(D) As used herein, the term Class A Share Price shall mean (i) if the consideration to be received in the Change of Control by holders of the Class A Shares is solely cash, the amount of cash consideration per Class A Share or (ii) if the consideration to be received in the Change of Control by holders of the Class A Shares is other than solely cash, (x) the average of the closing price per Class A Share (or, if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) for the ten (10) consecutive trading days immediately preceding, but not including, the effective date of the Change of Control as reported on the principal U.S. securities exchange on which the Class A Shares are then traded, or (y) the average of the last quoted bid prices for the Class A Shares in the over-the-counter market as reported by OTC Markets Group, Inc. or similar organization for the ten (10) consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the Class A Shares are not then listed for trading on a U.S. securities exchange.
(ii) Within fifteen (15) days following the occurrence of a Change of Control, the Trust shall provide to holders of Series G Preferred Shares a notice of occurrence of the Change of Control that describes the resulting Change of Control Conversion Right (Change of Control Notice). A failure to give such Change of Control Notice or any defect in the notice or in its mailing shall not affect the validity of the proceedings for the conversion of any Series G Preferred Shares except as to the holder to whom the Change of Control Notice was defective or not given. Each Change of Control Notice shall state the following: (A) the events constituting the Change of Control; (B) the date of the Change of Control; (C) the last date and time by which the holders of Series G Preferred Shares may exercise their Change of Control Conversion Right, which shall be the Change of Control Conversion Date; (D) the method and period for calculating the Class A Share Price; (E) the Change of Control Conversion Date; (F) that if, prior to the Change of Control Conversion Date, the Trust has provided or provides notice of its election to redeem all or any portion of the Series G Preferred Shares, holders shall not be able to convert Series G Preferred Shares designated for redemption and such shares shall be redeemed on the related redemption date, even if such shares have already been tendered for conversion pursuant to the Change of Control Conversion Right; (G) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per Series G Preferred Share; (H) the name and address of the paying agent and the conversion agent; and (I) the procedures that the holders of Series G Preferred Shares must follow to exercise the Change of Control Conversion Right.
(iii) The Trust shall issue a press release for publication on the Dow Jones & Company, Inc., Business Wire, PR Newswire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Trusts website, in any event prior to the opening of business on the first Business Day following any date on which the Trust provides a Change of Control Notice to the holders of Series G Preferred Shares.
(iv) In order to exercise the Change of Control Conversion Right, a holder of Series G Preferred Shares shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates (if any) or book entries evidencing the Series G Preferred Shares to be converted, duly endorsed for transfer (if certificates are delivered), together with a completed written conversion notice, to the transfer agent. Such conversion notice shall state: (A) the relevant Change of Control Conversion Date; (B) the number of Series G Preferred Shares to be converted; and (C) that the Series G Preferred
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Shares are to be converted pursuant to the applicable provisions of the Series G Preferred Shares. Notwithstanding the foregoing, if the Series G Preferred Shares are held in global form, such notice shall comply with applicable procedures of the Depository Trust Company (DTC). The Change of Control Conversion Date shall be a Business Day selected by the Trust set forth in the Change of Control Notice that is no less than twenty (20) days nor more than thirty-five (35) days after the date on which the Trust gives such notice.
(v) Holders of Series G Preferred Shares may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal delivered to the Trusts transfer agent prior to 5:00 PM Eastern time on the Business Day prior to the Change of Control Conversion Date. The notice of withdrawal must state: (i) the number of withdrawn Series G Preferred Shares; (ii) if certificated Series G Preferred Shares have been issued, the certificate numbers of the withdrawn Series G Preferred Shares; and (iii) the number of Series G Preferred Shares, if any, which remain subject to the conversion notice. Notwithstanding the foregoing, if the Series G Preferred Shares are held in global form, the notice of withdrawal shall comply with applicable DTC procedures.
(vi) Series G Preferred Shares as to which the Change of Control Conversion Right has been properly exercised and for which the conversion notice has not been properly withdrawn shall be converted into the applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date.
(vii) In connection with the exercise of any Change of Control Conversion Right, the Trust shall comply with all U.S. federal and state securities laws and stock exchange rules in connection with any conversion of Series G Preferred Shares into Class A Shares. Notwithstanding anything to the contrary contained herein, no holder of Series G Preferred Shares shall be entitled to convert such Series G Preferred Shares for Class A Shares to the extent that receipt of such Class A Shares would cause such holder (or any other person) to Beneficially Own, within the meaning of the Declaration of Trust, Common Shares of the Trust in excess of the Ownership Limit, as such term is defined in the Declaration of Trust.
(viii) No fractional Class A Shares shall be issued upon the conversion of the Series G Preferred Shares (whether such conversion occurs by conversion at the option of the Trust as set forth in paragraph (10)(a) or (c) hereof or by the Change of Control Conversion Right). In lieu of fractional shares, holders of the Series G Preferred Shares shall be entitled to receive the cash value of such fractional shares based on the Class A Share Price.
(ix) The Trust will deliver all Class A Shares, cash (including, without limitation, cash in lieu of fractional Class A Shares) and any other property owing upon conversion no later than the Trusts (4th) Business Day following the Change of Control Conversion Date. Notwithstanding the foregoing, the persons entitled to receive any Class A Shares or other securities delivered upon conversion will be deemed to have become the holders of record thereof as of the Change of Control Conversion Date.
(11) Record Holders. The Trust and the transfer agent for the Series G Preferred Shares may deem and treat the record holder of any Series G Preferred Shares as the true and lawful owner thereof for all purposes, and neither the Trust nor the transfer agent shall be affected by any notice to the contrary.
(12) Miscellaneous.
(a) Preemptive Rights. No holder of Series G Preferred Shares, as such, shall have any preemptive or preferential right to subscribe for or to purchase any additional shares of any class or series of Equity Shares of the Trust or any securities convertible into or exercisable or exchangeable for shares of any class or series of Equity Shares of the Trust.
(b) Tax Withholding. The Trust may withhold from or pay on behalf of or with respect to each holder of Series G Preferred Shares any amount of U.S. federal, state, local, or foreign taxes that the Trust reasonably determines that it was or is required to withhold or pay with respect to any cash or property distributable, allocable or otherwise transferred to such holder pursuant to these Articles Supplementary, including, without limitation, any taxes required to be withheld or paid by the Trust pursuant to Section 1441, 1442, or 1445 of the Internal Revenue Code of 1986, as amended.
(c) Office or Agency. The Trust will at all times maintain an office or agency in one of the 48 contiguous states of the United States of America where Series G Preferred Shares may be surrendered for payment (including upon redemption), registration of transfer or exchange.
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(d) Severability. If any preference, conversion or other right, voting power, restriction, limitation as to dividends or other distributions, qualification, term or condition of redemption or other term of the Series G Preferred Shares is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, then, to the extent permitted by law, all other preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, terms or conditions of redemption and other terms of the Series G Preferred Shares which can be given effect without the invalid, unlawful or unenforceable preference, conversion or other right, voting power, restriction, limitation as to dividends or other distributions, qualification, term or condition of redemption or other term of the Series G Preferred Shares shall remain in full force and effect and shall not be deemed dependent upon any other such preference, conversion or other right, voting power, restriction, limitation as to dividends or other distributions, qualification, term or condition of redemption or other term of the Series G Preferred Shares unless so expressed herein.
(e) Terms of the Series G Preferred Shares. All references to the terms of the Series G Preferred Shares (and all similar references) shall include all of the preferences, conversion and other rights, voting powers, restrictions and limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and provisions set forth in paragraphs (1) through (12), inclusive, hereof.
THIRD: The Shares have been classified and designated by the Pricing Committee under the authority granted by the Board pursuant to the powers of the Board as contained in the Declaration of Trust. These Articles Supplementary have been approved by the Pricing Committee in accordance with the power delegated to the Pricing Committee by the Board in the manner and by the vote required by law.
FOURTH: These Articles Supplementary shall become effective upon acceptance by the SDAT.
FIFTH: The undersigned Chief Executive Officer of the Trust acknowledges these Articles Supplementary to be the act of the Trust and, as to all matters or facts required to be verified under oath, the undersigned Chief Executive Officer of the Trust acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
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IN WITNESS WHEREOF, the Trust has caused these Articles Supplementary to be signed in its name and on its behalf by its Chief Executive Officer and attested to by its Secretary on this 11th day of July, 2017.
AMERICAN HOMES 4 RENT | ||
By: | /s/ David P. Singelyn | |
Name: David P. Singelyn | ||
Title: Chief Executive Officer |
ATTEST: | ||
By: | /s/ Stephanie G. Heim | |
Name: Stephanie G. Heim | ||
Title: Executive Vice President-Counsel and Assistant | ||
Secretary |
Exhibit 5.1
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Hogan Lovells US LLP Columbia Square 555 Thirteenth Street NW Washington, DC 20004 T +1 202 637 5600 F +1 202 637 5910 www.hoganlovells.com |
July 10, 2017
Board of Trustees
American Homes 4 Rent
30601 Agoura Road, Suite 200
Agoura Hills, California 91301
Ladies and Gentlemen:
We are acting as counsel to American Homes 4 Rent, a Maryland real estate investment trust (the Company), in connection with the public offering of up to 4,600,000 5.875% Series G cumulative redeemable perpetual preferred shares of beneficial interest, par value $0.01 per share (the Series G Preferred Shares) pursuant to that certain underwriting agreement (the Underwriting Agreement) dated July 10, 2017, among the Company, American Homes 4 Rent L.P., and Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Raymond James & Associates, Inc., as representatives of the several underwriters named on Schedule 1 of the Underwriting Agreement. The offering by the Company is being made pursuant to a prospectus supplement dated July 10, 2017 and the accompanying base prospectus dated August 7, 2014 (such documents, collectively, the Prospectus) that form part of the Companys effective registration statement on Form S-3 (File No. 333-197921) (the Registration Statement). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinion hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). We also have assumed that the Series G Preferred Shares will not be issued in violation of the ownership limit contained in the Companys Articles of Amendment and Restatement of Declaration of Trust, as amended. As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rio de Janeiro Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jakarta Jeddah Riyadh Zagreb. For more information see www.hoganlovells.com
This opinion letter is based as to matters of law solely on the applicable provisions of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended, currently in effect. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) issuance of the Series G Preferred Shares pursuant to the terms of the Underwriting Agreement and the Articles Supplementary for the Series G Preferred Shares (the Articles Supplementary), (ii) receipt by the Company of the consideration for the Series G Preferred Shares specified in the resolutions of the Board of Trustees and the Pricing Committee of the Board of Trustees, and (iii) in the case of the Companys Class A common shares of beneficial interest, $0.01 par value per share (the Class A Common Shares) issuable upon conversion of the Series G Preferred Shares (such Class A Common Shares issuable upon conversion, the Conversion Shares), a determination by the Board of Trustees of the Company to convert the Series G Preferred Shares and issue the Conversion Shares in accordance with the terms of the Articles Supplementary, the Series G Preferred Shares and Conversion Shares will be duly authorized, and when issued in accordance with the Articles Supplementary, will be validly issued, fully paid, and non-assessable.
This opinion letter has been prepared for use in connection with the filing by the Company of a Current Report on Form 8-K relating to the offer and sale of the Series G Preferred Shares, which Form 8-K will be incorporated by reference into the Registration Statement and Prospectus, and speaks as of the date hereof. We assume no obligation to advise of any changes in the foregoing subsequent to the delivery of this letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the above-described Form 8-K and to the reference to this firm under the caption Legal Matters in the Prospectus. In giving this consent, we do not thereby admit that we are an expert within the meaning of the Securities Act of 1933, as amended.
Very truly yours, |
/s/ Hogan Lovells US LLP |
HOGAN LOVELLS US LLP |
Exhibit 10.1
FOURTEENTH AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP OF
AMERICAN HOMES 4 RENT, L.P.
DESIGNATION OF 5.875% SERIES G CUMULATIVE REDEEMABLE PERPETUAL PREFERRED UNITS
July 11, 2017
Pursuant to Section 4.2 and Section 14.1.B of the Agreement of Limited Partnership of American Homes 4 Rent, L.P., as amended by the First Amendment, dated as of December 31, 2012, the Second Amendment, dated as of February 28, 2013, the Third Amendment, dated as of June 10, 2013, the Fourth Amendment, dated as of June 10, 2013, the Fifth Amendment, dated as of October 24, 2013, the Sixth Amendment, dated as of December 27, 2013 the Seventh Amendment, dated as of April 30, 2014, the Eighth Amendment, dated as of September 19, 2014, the Ninth Amendment, dated as of February 26, 2015, the Tenth Amendment, dated as of February 25, 2016, the Eleventh Amendment, dated as of May 17, 2016, the Twelfth Amendment, dated as of June 22, 2016, and the Thirteenth Amendment, dated as of April 20, 2017 (collectively, the Partnership Agreement), the General Partner hereby amends the Partnership Agreement as follows in connection with the issuance to American Homes 4 Rent (AH4R) of Series G Preferred Units (as defined herein) of American Homes 4 Rent, L.P. (the Partnership) in exchange for the contribution by AH4R of the net proceeds from the public offering of 5.875% Series G Cumulative Redeemable Perpetual Preferred Shares of beneficial interest, par value $0.01 per share, of AH4R (the Series G Preferred Shares):
1. Designation and Number. A series of Preferred Units (as defined herein), designated the 5.875% Series G Cumulative Redeemable Perpetual Preferred Units, is hereby established (the Series G Preferred Units). The number of Series G Preferred Units shall be 4,600,000. The Series G Preferred Units are being issued to AH4R in connection with the issuance by AH4R of Series G Preferred Shares. The designations, preferences and other rights of the Series G Preferred Units contained in this Fourteenth Amendment are intended to be substantially similar to the designations, preferences and other rights (except voting rights) contained in the Articles Supplementary for the Series G Preferred Shares, and AH4R shall interpret this Fourteenth Amendment in a manner consistent with such intent.
2. Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meanings given to such terms in the Partnership Agreement. The following defined terms used in this Fourteenth Amendment to the Partnership Agreement shall have the meanings specified below:
Articles Supplementary means the Articles Supplementary dated July 11, 2017 to the Articles of Amendment and Restatement of Declaration of Trust of AH4R designating the Series G Preferred Shares.
Business Day shall have the meaning provided in the Articles Supplementary.
Change of Control shall have the meaning provided in the Articles Supplementary.
Change of Control Conversion Date shall have the meaning provided in the Articles Supplementary.
Change of Control Conversion Right shall have the meaning provided in Section 9(b)(i).
Class A Share Price shall have the meaning provided in the Articles Supplementary.
Distribution Record Date shall have the meaning provided in Section 5(a).
Initial Liquidation Preference means $25.00 per Series G Preferred Unit.
Junior Preferred Units shall have the meaning provided in Section 4.
Liquidation Preference shall have the meaning provided in Section 6(a).
NYSE shall have the meaning provided in the Articles Supplementary.
Original Issue Date means July 17, 2017, the first date of issue of any Series G Preferred Units.
Parity Preferred Units shall have the meaning provided in Section 4.
Preferred Return shall have the meaning provided in Section 5(a).
Preferred Unit Distribution Payment Date shall have the meaning provided in Section 5(a).
Preferred Units means all Partnership Interests designated as preferred units by the General Partner from time to time in accordance with Section 4.2 of the Partnership Agreement.
Redemption Date shall have the meaning provided in Section 7(b)(i).
Regular Redemption Right shall have the meaning provided in Section 7(b)(i).
Senior Preferred Units shall have the meaning provided in Section 4.
Share Cap shall have the meaning provided in the Articles Supplementary.
Special Redemption Price shall have the meaning provided in Section 7(c)(i).
Special Redemption Right shall have the meaning provided in Section 7(c)(i).
3. Maturity. The Series G Preferred Units have no stated maturity and will not be subject to any sinking fund or mandatory redemption.
4. Rank. The Series G Preferred Units will, with respect to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership, rank (a) senior to all Class A Units, Class B Units, LTIP Units, and any class or series of Partnership Units expressly designated as ranking junior to the Series G Preferred Units as to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership (collectively, the Junior Preferred Units); (b) on a parity with any class or series of Partnership Units issued by the Partnership expressly designated as ranking on a parity with the Series G Preferred Units as to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership (the Parity Preferred Units); and (c) junior to any class or series of Partnership Units issued by the Partnership expressly designated as ranking senior to the Series G Preferred Units as to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership (the Senior Preferred Units). The term Partnership Units does not include convertible or exchangeable debt securities of the Partnership, which will rank senior to the Series G Preferred Units prior to conversion or exchange. The Series G Preferred Units will also rank junior in right of payment to the Partnerships existing and future indebtedness.
5. Distributions.
(a) Subject to the preferential rights of holders of any class or series of Senior Preferred Units of the Partnership, the holders of Series G Preferred Units shall be entitled to receive, when, as and if authorized by the General Partner and declared by the Partnership, out of funds of the Partnership legally available for payment of distributions, cumulative cash distributions at the applicable annual rate (the Preferred Return):
On and after the Original Issue Date | ||
Distribution Rate: | 5.875% per annum on the Initial Liquidation Preference |
Distributions on the Series G Preferred Units shall accrue and be cumulative from (and including) the Original Issue Date and shall be payable quarterly, in equal amounts, in arrears, on the last day of each March, June, September and December of each year (each, a Preferred Unit Distribution Payment Date); provided, however, if any Preferred Unit Distribution Payment Date is not a Business Day, then the distribution which would otherwise have been payable on such Preferred Unit Distribution Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Preferred Unit Distribution Payment Date, and no interest or additional distributions or other sums shall accrue on the amount so payable from such Preferred Unit Distribution Payment Date to such next succeeding Business Day. A distribution period shall mean the period commencing from, and including, the Preferred Unit Distribution Payment Date to, but excluding, the next succeeding Preferred Unit Distribution Payment Date. The initial distribution period shall be the period from, and including, the Original Issue Date to, but excluding, September 30, 2017 to holders of record of the Series G Preferred Units as of September 15, 2017. The amount of any distribution payable on the Series G Preferred Units for any partial distribution period will be prorated and computed on the basis of twelve 30-day months and a 360-day year. Distributions will be payable in arrears to holders of record of the Series G Preferred Units as they appear on the records of the Partnership at 5:00 P.M., New York time, on the applicable record date, which shall be the March 15, June 15, September 15, or December 15 immediately preceding the Preferred Unit Distribution Payment Date (each, a Distribution Record Date). If a Distribution Record Date does not fall on a Business Day, then such Distribution Record Date shall be the immediately preceding Business Day.
(b) No distributions on the Series G Preferred Units shall be authorized by the General Partner or declared, paid or set apart for payment by the Partnership at such time as the terms and provisions of any agreement of the General Partner or the Partnership, including any agreement relating to the indebtedness of any of them, prohibits such authorization, declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.
(c) Notwithstanding anything to the contrary contained herein, distributions on the Series G Preferred Units will accrue whether or not the restrictions referred to in Section 5(b) exist, whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are authorized or declared.
(d) Except as provided in Section 5(e) below, no distributions shall be declared and paid or set apart for payment, and no other distribution of cash or other property may be declared and made, directly or indirectly, on or with respect to, any Class A Units, Class B Units, LTIP Units, Parity Preferred Units or Junior Preferred Units of the Partnership (other than a distribution paid in units of, or options, warrants or rights to subscribe for or purchase units of, Class A Units, Class B Units, LTIP Units or Junior Preferred Units) for any period, nor shall Class A Units, Class B Units, LTIP Units, Parity Preferred Units or Junior Preferred Units be redeemed, purchased or otherwise acquired for any consideration, nor shall any funds be paid or made available for a sinking fund for the redemption of any such units by the Partnership, directly or indirectly (except by conversion into or exchange for, or options, warrants or rights to purchase or subscribe for, Class A Units, Class B Units, LTIP Units or Junior Preferred Units, and except for purchases or exchanges pursuant to a purchase or exchange offer made on the same terms to all holders of Series G Preferred Units and all holders of Parity Preferred Units), unless full cumulative distributions on the Series G Preferred Units for all past distribution periods shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for such payment.
(e) When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) on the Series G Preferred Units and any Parity Preferred Units, all distributions declared on the Series G Preferred Units and any Parity Preferred Units shall be declared pro rata so that the amount of distributions declared per Series G Preferred Unit and any such Parity Preferred Unit shall in all cases bear to each other the same ratio that accrued distributions per Series G Preferred Unit and any such Parity Preferred Unit (which shall not include any accrual in respect of unpaid distributions on any Parity Preferred Unit for prior distribution periods if such Parity Preferred Unit does not have a cumulative distribution) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on Series G Preferred Units which may be in arrears.
(f) Holders of Series G Preferred Units shall not be entitled to any distribution, whether payable in cash, property or units of the Partnership, in excess of full cumulative distributions on the Series G Preferred Units as provided above. Any distribution made on the Series G Preferred Units shall first be credited against the earliest accrued but unpaid distributions due with respect to such units which remains payable. Accrued but unpaid distributions on Series G Preferred Units will accumulate as of the Preferred Unit Distribution Payment Date on which they first become payable or on the date of redemption, as the case may be.
(g) For the avoidance of doubt, in determining whether a distribution (other than upon voluntary or involuntary liquidation), redemption or other acquisition of the Partnership Units is permitted under Delaware law, no effect shall be given to the amounts that would be needed, if the Partnership were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of Partnership Units whose preferential rights are superior to those receiving the distribution.
6. Liquidation Preference.
(a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Partnership, before any distribution or payment shall be made to the holders of any Class A Units, Class B Units, LTIP Units, or Junior Preferred Units, the holders of the Series G Preferred Units then outstanding shall be entitled to be paid, or have the Partnership declare and set apart for payment, out of the assets of the Partnership legally available for distribution to its Partners after payment or provision for payment of all debts and other liabilities of the Partnership and any liquidation preference owing in respect of any Senior Preferred Units, a liquidation preference in cash or property at fair market value, as determined by the General Partner, the sum of: (i) the Initial Liquidation Preference and (ii) an amount per unit equal to any accrued and unpaid distributions to, but excluding, the date of payment or the date the amount for payment is set apart for payment (the Liquidation Preference).
(b) If upon any such voluntary or involuntary liquidation, dissolution or winding up of the Partnership, the available assets of the Partnership are insufficient to pay the full amount of the Liquidation Preference on all outstanding Series G Preferred Units and the corresponding amounts payable on all outstanding Parity Preferred Units, then the holders of Series G Preferred Units and Parity Preferred Units shall share ratably in any such distribution of assets in proportion to the full amount of the Liquidation Preference to which they would otherwise be respectively entitled.
(c) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Partnership, after payment shall have been made in full to the holders of the Series G Preferred Units and any Parity Preferred Units, any other series or class or classes of Junior Preferred Units shall be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series G Preferred Units and any Parity Preferred Units shall not be entitled to share therein.
(d) After payment of the full amount of the Liquidation Preference to which they are entitled, holders of Series G Preferred Units will have no right or claim to any of the remaining assets of the Partnership.
(e) For the avoidance of doubt, the consolidation or merger of the Partnership with or into another entity, the merger of another entity with or into the Partnership, a statutory unit exchange by the Partnership or the sale, lease, transfer or conveyance of all or substantially all of the assets or business of the Partnership shall not be considered a liquidation, dissolution or winding up of the affairs of the Partnership.
(f) Notice of liquidation, dissolution or winding up of the Partnership shall be consistent with the notice procedures set forth in paragraph 5(d) of the Articles Supplementary.
7. Redemption.
(a) The Series G Preferred Units are not redeemable except as otherwise provided in this Section 7.
(b) Redemption by the Partnership.
i. | After July 17, 2022, if and when AH4R exercises its option to redeem Series G Preferred Shares as provided in paragraph 6(a)(i) of the Articles Supplementary, the Partnership may redeem some or all of the Series G Preferred Units, for cash, at a redemption price equal to the Liquidation Preference to, but excluding, the date fixed for redemption (such date, the Redemption Date) (such right, the Regular Redemption Right). |
ii. | Unless full cumulative distributions on all Series G Preferred Units shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periods, the Partnership shall not purchase or otherwise acquire directly or indirectly for any consideration, nor shall any monies be paid to or be made available for a sinking fund for the redemption of, any Series G Preferred Units (except by conversion into or exchange for, or options, warrants or rights to purchase or subscribe for Class A Units, Class B Units, LTIP Units or Junior Preferred Units of the Partnership); provided, however, that the foregoing shall not prevent the redemption or purchase of Series G Preferred Units by the Partnership in order to ensure that the General Partner remains qualified as a REIT for federal income tax purposes, or the purchase or acquisition of Series G Preferred Units pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series G Preferred Units. |
iii. | Immediately prior to any redemption of Series G Preferred Units, the Partnership shall pay, in cash, any accrued and unpaid distributions on the Series G Preferred Units to, but excluding, the Redemption Date, unless a Redemption Date falls after a Distribution Record Date and prior to the corresponding Preferred Unit Distribution Payment Date, in which case each holder of Series G Preferred Units at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such units on the corresponding Preferred Unit Distribution Payment Date (including any accrued and unpaid distributions for prior distribution periods) notwithstanding the redemption of such units before such Preferred Unit Distribution Payment Date. Except as provided above, the Partnership will make no payment or allowance for unpaid distributions, whether or not in arrears, on Series G Preferred Units for which a notice of redemption has been given. |
iv. | Notice of redemption of the Series G Preferred Units shall be consistent with the notice procedures set forth in paragraph 6(a)(ii)(A) of the Articles Supplementary. |
v. | Holders of Series G Preferred Units to be redeemed shall surrender such Series G Preferred Units at the place or places designated in such notice and, upon surrender of the units, such Series G Preferred Units shall be redeemed by the Partnership at the redemption price plus any accrued and unpaid distributions payable upon such redemption. If notice of redemption of any of the Series G Preferred Units has been given and if the funds necessary for such redemption have been set apart by the Partnership for the benefit of the holders of any Series G Preferred Units so called for redemption, then, from and after the Redemption Date, distributions will cease to accrue on such Series G Preferred Units, such Series G Preferred Units shall no longer be deemed outstanding and all rights of the holders of such Series G Preferred Units will terminate, except the right to receive the redemption price and any accrued and unpaid distributions to, but excluding, the Redemption Date; provided, however, if the Redemption Date falls after a Distribution Record Date and prior to the corresponding Preferred Unit Distribution Payment Date, each holder of Series G Preferred Units so called for redemption at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such units on the corresponding Preferred Unit Distribution Payment Date notwithstanding the redemption of such units before such Preferred Unit Distribution Payment Date. |
vi. | All Series G Preferred Units redeemed or otherwise acquired by the Partnership in any manner whatsoever shall be retired and reclassified as authorized but unissued Preferred Units, without designation as to class or series, and may thereafter be reissued as any class or series of Preferred Units in accordance with the applicable provisions of the Partnership Agreement. |
(c) Special Redemption Right upon a Change of Control.
i. | Upon the occurrence of a Change of Control, if and when AH4R exercises its option to redeem Series G Preferred Shares as provided in paragraph 6(b)(i) of the Articles Supplementary, the Partnership will redeem all or any part of the Series G Preferred Units at any time within 120 days after the date on which the Change of Control has occurred (the Special Redemption Right), for cash equal to the Liquidation Preference, to, but excluding, the Redemption Date (the Special Redemption Price). If, prior to the Change of Control Conversion Date, the Partnership exercises its Regular Redemption Right or Special Redemption Right in connection with a Change of Control, holders of the Series G Preferred Units shall not be permitted to exercise their Change of Control Conversion Right (as defined in Section 9(b)(i) below). |
ii. | Unless full cumulative distributions on all Series G Preferred Units shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periods, the Partnership shall not purchase or otherwise acquire directly or indirectly for any consideration, nor shall any monies be paid to or be made available for a sinking fund for the redemption of, any Series G Preferred Units (except by conversion into or exchange for, or options, warrants or rights to purchase or subscribe for Class A Units, Class B Units, LTIP Units or Junior Preferred Units of the Partnership); provided, however, that the foregoing shall not prevent the redemption or purchase of Series G Preferred Units by the Partnership in order to ensure that the General Partner remains qualified as a REIT for federal income tax purposes, or the purchase or acquisition of Series G Preferred Units pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series G Preferred Units. |
iii. | Immediately prior to any redemption of Series G Preferred Units, the Partnership shall pay, in cash, any accrued and unpaid distributions on the Series G Preferred Units to, but excluding, the Redemption Date, unless a Redemption Date falls after a Distribution Record Date and prior to the corresponding Preferred Unit Distribution Payment Date, in which case each holder of Series G Preferred Units at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such units on the corresponding Preferred Unit Distribution Payment Date (including any accrued and unpaid distributions for prior distribution periods) notwithstanding the redemption of such units before such Preferred Unit Distribution Payment Date. Except as provided above, the Partnership will make no payment or allowance for unpaid distributions, whether or not in arrears, on Series G Preferred Units for which a notice of redemption has been given. |
iv. | Notice of redemption of the Series G Preferred Units shall be consistent with the notice procedures set forth in paragraph 6(b)(ii)(A) of the Articles Supplementary. |
v. | Holders of Series G Preferred Units to be redeemed shall surrender such Series G Preferred Units at the place or places designated in such notice and, upon surrender of the units, such Series G Preferred Units shall be redeemed by the Partnership at the redemption price plus any accrued and unpaid distributions payable upon such redemption. If notice of redemption of any of the Series G Preferred Units has been given and if the funds necessary for such redemption have been set apart by the |
Partnership for the benefit of the holders of any Series G Preferred Units so called for redemption, then, from and after the Redemption Date, distributions will cease to accrue on such Series G Preferred Units, such Series G Preferred Units shall no longer be deemed outstanding and all rights of the holders of such Series G Preferred Units will terminate, except the right to receive the redemption price and any accrued and unpaid distributions to, but excluding, the Redemption Date; provided, however, if the Redemption Date falls after a Distribution Record Date and prior to the corresponding Preferred Unit Distribution Payment Date, each holder of Series G Preferred Units so called for redemption at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such units on the corresponding Preferred Unit Distribution Payment Date notwithstanding the redemption of such units before such Preferred Unit Distribution Payment Date. |
vi. | All Series G Preferred Units redeemed or otherwise acquired by the Partnership in any manner whatsoever shall be retired and reclassified as authorized but unissued Preferred Units, without designation as to class or series, and may thereafter be reissued as any class or series of Preferred Units in accordance with the applicable provisions of the Partnership Agreement. |
8. Voting Rights. Holders of the Series G Preferred Units will not have any voting rights.
9. Conversion.
(a) The Series G Preferred Units are not convertible or exchangeable for any other property or securities except as otherwise provided in this Section 9.
(b) Conversion Upon a Change of Control.
i. | Upon the occurrence of a Change of Control, each holder of the Series G Preferred Units shall have the right (the Change of Control Conversion Right), subject to the Special Redemption Right of the Partnership, to convert some or all of the Series G Preferred Units held by such holder on the relevant Change of Control Conversion Date into a number of Class A Units per Series G Preferred Unit equal to the lesser of (A) the quotient obtained by dividing (1) the sum of (x) the Initial Liquidation Preference, plus (y) any accrued and unpaid distributions thereon to, but excluding, the Change of Control Conversion Date, unless the Change of Control Conversion Date is after a Distribution Record Date for a Preferred Unit Distribution Payment Date for which distributions have been declared and prior to the corresponding Preferred Unit Distribution Payment Date, in which case no additional amount for such accrued and unpaid distribution will be included in this sum and such declared distribution will instead be paid, on such Preferred Unit Distribution Payment Date, to the holder of record of the Series G Preferred Units to be converted as of 5:00 P.M. New York time, on such Distribution Record Date), by (2) the Class A Share Price, and (B) the Share Cap. |
ii. | Notice of occurrence of the Change of Control shall be consistent with the notice procedures set forth in paragraph 10(a)(ii) of the Articles Supplementary. |
iii. | Exercise of the Change of Control Conversion Right shall be consistent with the procedures set forth in paragraphs 10(a)(iv) and (v) of the Articles Supplementary. |
iv. | No fractional Class A Units shall be issued upon conversion of the Series G Preferred Units. In lieu of fractional units, holders of the Series G Preferred Units shall be entitled to receive the cash value of such fractional units based on the Class A Unit Price. |
v. | The Partnership will deliver all Class A Units (including, without limitation, cash in lieu of fractional Class A Units) and any other property owing upon conversion no later than the fourth (4th) Business Day following the Change of Control Conversion Date. |
10. Allocation of Profit and Loss. Allocations of the Partnerships items of income, gain, loss and deduction shall be allocated among holders of Series G Preferred Units in accordance with Article VI of the Partnership Agreement.
11. Except as modified herein, all terms and conditions of the Partnership Agreement shall remain in full force and effect, which terms and conditions the General Partner hereby ratifies and confirms.
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
GENERAL PARTNER:
AMERICAN HOMES 4 RENT | ||
By: | /s/ Diana Laing | |
Name: Diana Laing Title: Chief Financial Officer |