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): June 25, 2019
American Finance Trust, Inc.
(Exact Name of Registrant as Specified in Charter)
| Maryland | 001-38597 | 90-0929989 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
|
405 Park Avenue, 3rd Floor New York, New York 10022 |
|
(Address, including zip code, of Principal Executive Offices)
Registrant’s telephone number, including area code: (212) 415-6500 |
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:
| o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Securities registered pursuant to section 12(b) of the Act: | ||||
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Class A Common Stock, $0.01 par value | AFIN | The Nasdaq Global Select Market | ||
| 7.50% Series A Cumulative Redeemable Perpetual Preferred Stock, $0.01 par value | AFINP | The Nasdaq Global Select Market | ||
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 o
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. o
| Item 1.01. | Entry into a Material Definitive Agreement. |
Amendments to Equity Distribution Agreements
On June 25, 2019, American Finance Trust, Inc. (the “Company”) entered into an amendment (the “Common Stock EDA Amendment”) to the Equity Distribution Agreement dated May 8, 2019 (the “Common Stock Equity Distribution Agreement”) among the Company and American Finance Operating Partnership, L.P. (the “Operating Partnership”), on the one hand, and BMO Capital Markets Corp., BBVA Securities Inc., B. Riley FBR, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc. and SunTrust Robinson Humphrey, Inc. solely for the purpose of revising the list of agents in the Company’s “at the market” equity offering program for its Class A common stock named in the Common Stock Equity Distribution Agreement to include SG Americas Securities, LLC (“SG Americas”).
On June 25, 2019, the Company also entered into an amendment (the “Preferred Stock EDA Amendment”) to the Equity Distribution Agreement dated May 8, 2019 (the “Preferred Stock Equity Distribution Agreement,” and together with the Common Stock Equity Distribution Agreement, the “Agreements”) among the Company and the Operating Partnership, on the one hand, and BMO Capital Markets Corp., BBVA Securities Inc., B. Riley FBR, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc. and SunTrust Robinson Humphrey, Inc. solely for the purpose of revising the list of agents in the Company’s “at the market” equity offering program for its 7.50% Series A Cumulative Redeemable Perpetual Preferred Stock named in the Preferred Stock Equity Distribution Agreement to include D.A. Davidson & Co.
SG Americas, or one of its affiliates is a lender under certain of the Company’s mortgage loans. In addition, an affiliate of BMO Capital Markets Corp. is administrative agent, as well as a lender, under the Company’s revolving credit facility, and certain of the other agents or their affiliates are also lenders under the Company’s revolving credit facility. Certain of the other agents or their affiliates are also lenders under certain of the Company’s mortgage loans or counterparties with respect to certain of the Company’s swaps .
Copies of the Common Stock EDA Amendment and the Preferred Stock EDA Amendment are filed as Exhibits 1.1 and 1.2, respectively, to this Current Report on Form 8-K, and the description of the material terms of the Common Stock EDA Amendment and the Preferred Stock EDA Amendment in this Item 1.01 is qualified in its entirety by reference to the Common Stock EDA Amendment and the Preferred Stock EDA Amendment, which are incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits |
| Exhibit No. | Description |
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 thereunto duly authorized.
| AMERICAN FINANCE TRUST, INC. | ||
| By: | /s/ Edward M. Weil, Jr. | |
| Edward M. Weil, Jr. | ||
| Chief Executive Officer and President | ||
Dated: June 25, 2019
Exhibit 1.1
AMERICAN FINANCE TRUST, INC.
AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
June 25, 2019
BMO Capital Markets Corp.
3 Times Square
New York, New York 10036
BBVA Securities Inc.
1345 Avenue of the Americas, 44th Floor
New York, New York 10105
B. Riley FBR, Inc.
299 Park Avenue, 21st Floor
New York, New York 10171
Citizens Capital Markets, Inc.
600 Washington Blvd., 11th Floor
Stamford, Connecticut 06901
KeyBanc Capital Markets Inc.
127 Public Square, 11th Floor
Cleveland, Ohio 44114
Ladenburg Thalmann & Co. Inc.
277 Park Avenue, 26th Floor
New York, New York 10172
SunTrust Robinson Humphrey, Inc.
3333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
SG Americas Securities, LLC
245 Park Avenue
New York, NY 10167
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated as of May 8, 2019 (the “ Agreement ”), by and among American Finance Trust, Inc., a Maryland corporation (the “ Company ”), and American Finance Operating Partnership, L.P., a Delaware limited partnership (the “ Operating Partnership ”), on the one hand, and BMO Capital Markets Corp., BBVA Securities Inc., B. Riley FBR, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc. and SunTrust Robinson Humphrey, Inc. (together with the Company and the Operating Partnership, the “ Parties ”) related to the issuance and sale of the Company’s Class A common stock, $0.01 par value per share, pursuant to the terms thereof. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
In connection with the foregoing, the Parties wish to amend the Agreement through this Amendment No. 1 to the Equity Distribution Agreement (this “ Amendment ”) to modify the definition of certain defined terms set forth in the Agreement and used therein and to make certain other changes to the Agreement with effect on and after the date hereof (the “ Effective Date ”).
SECTION 1. Amendments to the Agreement . The Parties agree, from and after the Effective Date, that:
| a. | The definitions of the terms “Agent” and “Agents” are hereby amended to read as follows: “BMO Capital Markets Corp., BBVA Securities Inc., B. Riley FBR, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc., SunTrust Robinson Humphrey, Inc. and SG Americas Securities, LLC (each an “ Agent ” and collectively, the “ Agents ”).” |
| b. | The first sentence of Section 6(a) is hereby amended and restated in its entirety to read as follows: “The Company may terminate this Agreement, in its entirety or as to any particular Agent, in its sole discretion at any time upon giving prior written notice to the Agents.” |
| c. | Section 7(a) of the Agreement is hereby amended to include the following immediately subsequent to: “if to the Agents, shall be sufficient in all respects if delivered or sent to (i)”: “SG Americas Securities, LLC, 245 Park Avenue, New York, NY 10167, Attention: Tim Oeljeschlaeger, (212) 278-5187, Raymond Ko, (212) 278-7415.” |
| d. | The second sentence of Section 7(l) of the Agreement is hereby amended and restated in its entirety to read as follows: “Except for any termination of any particular Agent by the Company pursuant to Section 6(a), neither this Agreement nor any Terms Agreement may be amended or otherwise modified or any provision hereof waived except by an instrument in writing signed by the Agents, the Operating Partnership and the Company.” |
SECTION 2. Obligations Binding upon SG Americas Securities, LLC . SG Americas Securities, LLC hereby agrees to be bound by the terms of the Agreement. SG Americas Securities, LLC shall be considered to be an Agent in the offering of the Shares under the Agreement to the same extent as if it were a party to the Agreement on the date of the execution thereof.
SECTION 3. No Other Amendments; References to Agreements . Except as set forth in this Amendment, all other terms and provisions of the Agreement shall continue in full force and effect. All references to the Agreement in the Agreement or in any other document executed or delivered in connection therewith shall, from the date hereof, be deemed a reference to the Agreement as amended by this Amendment.
SECTION 4. Governing Law . THIS AMENDMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING UNDER OR RELATED TO THIS AMENDMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. Each party hereto hereby irrevocably submits for purposes of any action arising from this Amendment brought by the other party hereto to the jurisdiction of the courts of New York State located in the Borough of Manhattan and the U.S. District Court for the Southern District of New York.
SECTION 5. Counterparts . This Amendment may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 6. Survival of Provisions Upon Invalidity of Any Single Provision . In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 7. Waiver of Jury Trial . Each of the Company, the Operating Partnership and the Agents hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Amendment or the transactions contemplated hereby or thereby.
SECTION 8. Titles and Subtitles . The titles of the sections and subsections of this Amendment are for convenience and reference only and are not to be considered in construing this Amendment.
SECTION 9. Successors and Assigns . This Amendment shall be binding upon each Agent and the Company and the Operating Partnership and their successors and assigns and any successor or assign of any substantial portion of the Company’s and the Operating Partnership’s and each Agent’s respective business or assets.
[Signature Page Follows]
| Very truly yours, | ||
| AMERICAN FINANCE TRUST, INC. | ||
| By: | /s/ Edward M. Weil, Jr. | |
| Name: Edward M. Weil, Jr. | ||
| Title: Chief Executive Officer and President | ||
| AMERICAN FINANCE OPERATING PARTNERSHIP, L.P. | ||
| By: | /s/ Edward M. Weil, Jr. | |
| Name: Edward M. Weil, Jr. | ||
| Title: Chief Executive Officer and President | ||
[Signature Page to Amendment No. 1 to Equity Distribution Agreement]
Confirmed as of the date first above mentioned:
| BMO CAPITAL MARKETS CORP. | |||
| By: | /s/ Stephan Richford | ||
| Name: Stephan Richford | |||
| Title: Managing Director | |||
| BBVA SECURITIES INC. | |||
| By: | /s/ Carlyle Peake | ||
| Name: Carlyle Peake | |||
| Title: Managing Director | |||
| B. RILEY FBR, INC. | |||
| By: | /s/ Patrice McNicoll | ||
| Name: Patrice McNicoll | |||
| Title: Co-Head, Investment Banking | |||
| CITIZENS CAPITAL MARKETS, INC. | |||
| By: | /s/ Mark Sanko | ||
| Name: Mark Sanko | |||
| Title: Managing Director | |||
| KEYBANC CAPITAL MARKETS INC. | |||
| By: | /s/ Paul Hodermarsky | ||
| Name: Paul Hodermarsky | |||
| Title: Managing Director | |||
| LADENBURG THALMANN & CO., INC. | |||
| By: | /s/ Steven Kaplan | ||
| Name: Steven Kaplan | |||
| Title: Head of Capital Markets | |||
| SUNTRUST ROBINSON HUMPHREY, INC. | |||
| By: | /s/ Keith Carpenter | ||
| Name: Keith Carpenter | |||
| Title: Director | |||
[Signature Page to Amendment No. 1 to Equity Distribution Agreement]
| SG AMERICAS SECURITIES, LLC | |||
| By: | /s/ Sebastien Gacon | ||
| Name: Sebastien Gacon | |||
| Title: Authorized Signatory | |||
[Signature Page to Amendment No. 1 to Equity Distribution Agreement]
Exhibit 1.2
AMERICAN FINANCE TRUST, INC.
AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
June 25, 2019
BMO Capital Markets Corp.
3 Times Square
New York, New York 10036
BBVA Securities Inc.
1345 Avenue of the Americas, 44th Floor
New York, New York 10105
B. Riley FBR, Inc.
299 Park Avenue, 21st Floor
New York, New York 10171
Citizens Capital Markets, Inc.
600 Washington Blvd., 11th Floor
Stamford, Connecticut 06901
KeyBanc Capital Markets Inc.
127 Public Square, 11th Floor
Cleveland, Ohio 44114
Ladenburg Thalmann & Co. Inc.
277 Park Avenue, 26th Floor
New York, New York 10172
SunTrust Robinson Humphrey, Inc.
3333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
D.A. Davidson & Co.
8 Third Street North
Great Falls, MT 59401
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated as of May 8, 2019 (the “ Agreement ”), by and among American Finance Trust, Inc., a Maryland corporation (the “ Company ”), and American Finance Operating Partnership, L.P., a Delaware limited partnership (the “ Operating Partnership ”), on the one hand, and BMO Capital Markets Corp., BBVA Securities Inc., B. Riley FBR, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc. and SunTrust Robinson Humphrey, Inc. (together with the Company and the Operating Partnership, the “ Parties ”) regarding the issuance and sale of the Company’s 7.50% Series A Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share, pursuant to the terms thereof. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
In connection with the foregoing, the Parties wish to amend the Agreement through this Amendment No. 1 to the Equity Distribution Agreement (this “ Amendment ”) to modify the definition of certain defined terms set forth in the Agreement and used therein and to make certain other changes to the Agreement with effect on and after the date hereof (the “ Effective Date ”).
SECTION 1. Amendments to the Agreement . The Parties agree, from and after the Effective Date, that:
| a. | The definitions of the terms “Agent” and “Agents” are hereby amended to read as follows: “BMO Capital Markets Corp., BBVA Securities Inc., B. Riley FBR, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc., SunTrust Robinson Humphrey, Inc. and D.A. Davidson & Co. (each an “ Agent ” and collectively, the “ Agents ”).” |
| b. | The first sentence of Section 6(a) is hereby amended and restated in its entirety to read as follows: “The Company may terminate this Agreement, in its entirety or as to any particular Agent, in its sole discretion at any time upon giving prior written notice to the Agents.” |
| c. | Section 7(a) of the Agreement is hereby amended to include the following immediately subsequent to: “if to the Agents, shall be sufficient in all respects if delivered or sent to (i)”: “D.A. Davidson & Co., 8 Third Street North, Great Falls, MT 59401, Attention: Equity Syndicate, (406) 791-7319.” |
| d. | The second sentence of Section 7(l) of the Agreement is hereby amended and restated in its entirety to read as follows: “Except for any termination of any particular Agent by the Company pursuant to Section 6(a), neither this Agreement nor any Terms Agreement may be amended or otherwise modified or any provision hereof waived except by an instrument in writing signed by the Agents, the Operating Partnership and the Company.” |
SECTION 2. Obligations Binding upon D.A. Davidson & Co. D.A. Davidson & Co. hereby agrees to be bound by the terms of the Agreement. D.A. Davidson & Co. shall be considered to be an Agent in the offering of the Shares under the Agreement to the same extent as if it were a party to the Agreement on the date of the execution thereof.
SECTION 3. No Other Amendments; References to Agreements . Except as set forth in this Amendment, all other terms and provisions of the Agreement shall continue in full force and effect. All references to the Agreement in the Agreement or in any other document executed or delivered in connection therewith shall, from the date hereof, be deemed a reference to the Agreement as amended by this Amendment.
SECTION 4. Governing Law . THIS AMENDMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING UNDER OR RELATED TO THIS AMENDMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. Each party hereto hereby irrevocably submits for purposes of any action arising from this Amendment brought by the other party hereto to the jurisdiction of the courts of New York State located in the Borough of Manhattan and the U.S. District Court for the Southern District of New York.
SECTION 5. Counterparts . This Amendment may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 6. Survival of Provisions Upon Invalidity of Any Single Provision . In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 7. Waiver of Jury Trial . Each of the Company, the Operating Partnership and the Agents hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Amendment or the transactions contemplated hereby or thereby.
SECTION 8. Titles and Subtitles . The titles of the sections and subsections of this Amendment are for convenience and reference only and are not to be considered in construing this Amendment.
SECTION 9. Successors and Assigns . This Amendment shall be binding upon each Agent and the Company and the Operating Partnership and their successors and assigns and any successor or assign of any substantial portion of the Company’s and the Operating Partnership’s and each Agent’s respective business or assets.
[Signature Page Follows]
| Very truly yours, | ||
| AMERICAN FINANCE TRUST, INC. | ||
| By: | /s/ Edward M. Weil, Jr. | |
| Name: Edward M. Weil, Jr. | ||
| Title: Chief Executive Officer and President | ||
| AMERICAN FINANCE OPERATING PARTNERSHIP, L.P. | ||
| By: | /s/ Edward M. Weil, Jr. | |
| Name: Edward M. Weil, Jr. | ||
| Title: Chief Executive Officer and President | ||
[Signature Page to Amendment No. 1 to Equity Distribution Agreement]
Confirmed as of the date first above mentioned:
| BMO CAPITAL MARKETS CORP. | |||
| By: | /s/ Stephan Richford | ||
| Name: Stephan Richford | |||
| Title: Managing Director | |||
| BBVA SECURITIES INC. | |||
| By: | /s/ Carlyle Peake | ||
| Name: Carlyle Peake | |||
| Title: Managing Director | |||
| B. RILEY FBR, INC. | |||
| By: | /s/ Patrice McNicoll | ||
| Name: Patrice McNicoll | |||
| Title: Co-Head, Investment Banking | |||
| CITIZENS CAPITAL MARKETS, INC. | |||
| By: | /s/ Mark Sanko | ||
| Name: Mark Sanko | |||
| Title: Managing Director | |||
| KEYBANC CAPITAL MARKETS INC. | |||
| By: | /s/ Paul Hodermarsky | ||
| Name: Paul Hodermarsky | |||
| Title: Managing Director | |||
| LADENBURG THALMANN & CO., INC. | |||
| By: | /s/ Steven Kaplan | ||
| Name: Steven Kaplan | |||
| Title: Head of Capital Markets | |||
| SUNTRUST ROBINSON HUMPHREY, INC. | |||
| By: | /s/ Keith Carpenter | ||
| Name: Keith Carpenter | |||
| Title: Director | |||
[Signature Page to Amendment No. 1 to Equity Distribution Agreement]
| D.A. DAVIDSON & CO. | |||
| By: | /s/ Keith E. Getter | ||
| Name: Keith E. Getter | |||
| Title: Managing Director | |||
[Signature Page to Amendment No. 1 to Equity Distribution Agreement]