UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. __)*

 

 

Front Yard Residential Corporation

(Name of Issuer)

Common stock, par value $0.01 per share

(Title of Class of Securities)

35904G107

(CUSIP Number)

Joseph Gatti

Executive Vice President and Secretary

Amherst Residential, LLC

5001 Plaza on the Lake, Suite 200

Austin, Texas 78746

512-342-3000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 4, 2020

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ☐

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.

 

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

CUSIP No. 35904G107

 

1		NAME OF REPORTING PERSONS   Amherst Single Family Residential Partners VI, LP
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   4,400,000
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   4,400,000
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   4,400,000
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   7.5%
14		TYPE OF REPORTING PERSON   PN

CUSIP No. 35904G107

 

1		NAME OF REPORTING PERSONS   Amherst SFRP VI GP, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   4,400,000
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   4,400,000
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   4,400,000
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   7.5%
14		TYPE OF REPORTING PERSON   OO

CUSIP No. 35904G107

 

1		NAME OF REPORTING PERSONS   Amherst Residential, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   4,400,000
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   4,400,000
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   4,400,000
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   7.5%
14		TYPE OF REPORTING PERSON   OO

CUSIP No. 35904G107

 

1		NAME OF REPORTING PERSONS   Amherst Holdings, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   4,400,000
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   4,400,000
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   4,400,000
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   7.5%
14		TYPE OF REPORTING PERSON   OO

Item 1. Security and Issuer

This statement on Schedule 13D relates to the common stock, par value $0.01 per share (the “Common Stock”) of Front Yard Residential Corporation, a Maryland corporation (the “Issuer”). The address of the Issuer’s principal executive offices is 5100 Tamarind Reef Christiansted, United States Virgin Islands 00820.

Item 2. Identity and Background

(a) This Schedule 13D is being filed by:

 

i.

Amherst Single Family Residential Partners VI, LP, a Delaware limited partnership (“Fund VI”);

 

ii.

Amherst SFRP VI GP, LLC, a Delaware limited liability company and general partner of Fund VI (“SFRP GP”);

 

iii.

Amherst Residential, LLC, a Delaware limited liability company and an indirect parent company of SFRP GP (“AmRes”); and

 

iv.

Amherst Holdings, LLC, a Delaware limited liability company (“Holdings” and together with Fund VI, SFRP GP and AmRes, the “Reporting Persons”).

(b) (c) The principal business address of the Reporting Persons is 5001 Plaza on the Lake, Suite 200, Austin, Texas 78746. The principal business of Fund VI is to directly or indirectly acquire bulk portfolios of single-family rental homes, including take private acquisitions of companies owning such homes. The principal business of SFRP GP is to act as the general partner of Fund VI. The principal business of AmRes is to own and manage, through its subsidiaries, portfolios of single-family rental properties and make other private equity investments. The principal business of Amherst Holdings is that of a holding company, including to act as majority equity owner of AmRes and a member of SFRP GP.

The name, business address, present principal occupation and citizenship of each of the directors of AmRes and Holdings (the “Schedule A Persons”) are set forth in Schedule A hereto and are incorporated herein by reference.

(d) (e) During the last five years, none of the Reporting Persons has, nor, to their knowledge, have any of the Schedule A Persons, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five years, none of the Reporting Persons was, nor, to their knowledge, were any of the Schedule A Persons, a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) Not applicable.

Item 3. Source and Amount of Funds or Other Consideration

Pursuant to the Investment Agreement (as defined below), on May 4, 2020, Fund VI agreed to purchase 4,400,000 shares of Common Stock (the “Acquired Shares”) from the Issuer for an aggregate cash purchase price of $55,000,000. Fund VI will fund the purchase using capital contributions from its limited partners.

Item 4. Purpose of Transaction

The response to Item 6 is incorporated herein by reference.

Fund VI agreed to acquire the Acquired Shares in furtherance of the actions contemplated by the Termination and Settlement Agreement (as described below) and for the purpose of making an investment in the Issuer.

Subject to the terms, conditions and limitations of the Investment Agreement, the Reporting Persons may from time to time engage in discussions with the Issuer’s Board of Directors, the Issuer’s management and other persons with respect to the management, operations, business, and financial condition of the Issuer and such other matters as the Reporting Persons may deem relevant to, among other things, their investment in the Issuer’s Common Stock or Promissory Note (as defined below).

The Reporting Persons may directly or indirectly at any time or from time to time determine, either alone or as part of a group, and subject to the terms, conditions and limitations of the Investment Agreement and Promissory Note, (a) to acquire additional securities or indebtedness of the Issuer, through open-market purchases, privately negotiated transactions or otherwise; (b) to dispose of all or a portion of the securities or indebtedness of the Issuer owned by it in the open market, in privately negotiated transactions or otherwise; (c) to engage in any hedging or similar transactions with respect to securities or indebtedness of the Issuer; (d) to encourage the Issuer to undertake strategic transactions, including (x) business combinations, dispositions and the sale or acquisition of real estate and other assets, and (y) financing transactions, in each case including transactions in which the Reporting Persons or their affiliates may seek to participate and potentially engage in, as a purchaser, seller, lender, investor or in other counterparty capacity; (e) to facilitate the internalization of the Issuer’s management and/or corporate governance functions; or (f) to take any other available course of action, which could involve one or more of the types of transactions or have one or more of the results set forth in subparagraphs (a)—(j) of Item 4 of Schedule 13D.

Notwithstanding anything contained herein, each Reporting Person specifically reserves the right to change its intention with respect to any or all of such matters. In reaching any decision as to its course of action (as well as to the specific elements thereof), each Reporting Person currently expects that it would take into consideration a variety of factors, including, but not limited to, the following: the Issuer’s business and prospects; other developments concerning the Issuer and its businesses generally; other business opportunities available to such Reporting Person; changes in law and government regulations; general economic conditions; and money and stock market conditions, including the market price of the securities of the Issuer.

Item 5. Interest in Securities of the Issuer

(a) (b) As of the filing of this Schedule 13D, Fund VI has not yet completed the acquisition of the Acquired Shares, which is expected to occur on or before May 19, 2020. However, under applicable federal securities rules and regulations, the Reporting Persons could be deemed to already beneficially own the Acquired Shares as a result of having entered into the Investment Agreement. Such Acquired Shares represent 7.5% of the Issuer’s Common Stock outstanding. Percentages of the Common Stock outstanding reported in this Schedule 13D are calculated based upon (i) the 54,112,374 shares of Common Stock outstanding as of May 4, 2020, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed by the Issuer with the Securities and Exchange Commission on May 11, 2020, plus (ii) the 4,400,000 to be issued to Fund VI pursuant to the Investment Agreement. Each of the Reporting Persons shares voting and dispositive power over the Acquired Shares of Common Stock to be held directly by Fund VI. Each of the Reporting Persons disclaim beneficial ownership of the Acquired Shares prior to and after the issuance of the Acquired Shares except to the extent of their pecuniary interest therein.

(c) Except for the planned acquisition of the Acquired Shares pursuant to the Investment Agreement, there have been no transactions in the shares of Common Stock during the sixty (60) days prior to the date of this Schedule 13D by any of the Reporting Persons.

(d) Except as provided below, no person, other than the Reporting Persons, has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock referred to in this Item 5. The limited partners of Fund VI have the right to participate in the receipt of certain dividends and proceeds from the sale of the Common Stock, in each case in accordance with their respective limited partnership interests.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The response to Item 4 is incorporated herein by reference.

Termination and Settlement Agreement

On February 17, 2020, BAF Holdings, LLC, an indirect wholly-owned subsidiary of Fund VI (“Parent”), BAF Sub, LLC, a wholly-owned direct subsidiary of Parent (“Merger Sub”) and the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which the Issuer was to be merged with and into Merger Sub on the terms and subject to the conditions set forth in the Merger Agreement. On May 4, 2020, Parent, Merger Sub and Fund VI, on the one hand, and the Issuer, on the other hand, entered into a Termination and Settlement Agreement (the “Termination and Settlement Agreement”), pursuant to which, among other things, Parent paid $25 million in cash to the Issuer and the Merger Agreement was terminated by mutual written consent of the Issuer and Parent. Under the Termination and Settlement Agreement, the parties agreed to release each other from all claims and actions arising out of or related to the Merger Agreement, the Equity Commitment Letter, the Limited Guarantee, the Debt Commitment Letter, and the Voting Agreements (as such terms are defined in the Merger Agreement) or the transactions or payments contemplated by any of the foregoing.

A copy of the Termination and Settlement Agreement is attached as Exhibit 1 and incorporated herein by reference. The foregoing description of the Termination and Settlement Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit.

Investment Agreement

On May 4, 2020, in connection with the Termination and Settlement Agreement, Fund VI entered into an Investment Agreement (the “Investment Agreement”) with the Issuer, pursuant to which, among other things, the Issuer agreed to issue and sell to Fund VI, and Fund VI agreed to purchase, the Acquired Shares from the Issuer at a price of $12.50 per share for an aggregate cash purchase price of $55 million. The closing of the transaction will be scheduled as promptly as practicable and no later than May 19, 2020. Capitalized terms used and not defined in this portion of Item 6 have the meanings set forth in the Investment Agreement.

Sales of Assets; Financing

The Investment Agreement provides that for the one-year period following the Closing Date, (i) to the extent the Issuer or any of its Subsidiaries determines to pursue a sale of assets representing 5% or more of the assets of the Issuer and its Subsidiaries, taken as a whole (based on book value) (excluding a transaction that, if consummated, would result in a change of control of the Issuer) (an “Asset Sale Transaction”), the Issuer will inform Fund VI of its intent to pursue such an Asset Sale Transaction and provide Fund VI with the opportunity to participate in the process related to such Asset Sale Transaction

and (ii) to the extent the Issuer or any of its Subsidiaries determines to pursue a debt or equity financing transaction (including a new or replacement credit facility, note, an issuance of debt securities, preferred shares, warrants or other equity-linked securities), for an amount representing 5% or more of the equity market capitalization of the Issuer (a “Financing Transaction”), the Issuer will inform Fund VI of its intent to pursue such a Financing Transaction and provide Fund VI with the opportunity to participate in the process related to such Financing Transaction; provided, that in no event shall the Issuer be obligated to enter into an Asset Sale Transaction or Financing Transaction with Fund VI by virtue of the Investment Agreement.

Standstill

Fund VI has also agreed to customary standstill restrictions for the two-year period following the acquisition of the Acquired Shares, including that Fund VI and its Affiliates will not acquire any equity securities of the Issuer, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of the Common Stock (subject to exceptions for any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in (or with respect to) securities of other industry participants), except that Fund VI and its Affiliates, following the Closing, subject to Section 7.2 of the Issuer’s Articles of Restatement, as amended, may acquire additional shares of Common Stock so long as Fund VI and its Affiliates beneficially own, in the aggregate, no more than 9.8% of the Issuer’s then-outstanding shares of Common Stock.

Voting Agreement

Fund VI also agreed that until the two-year anniversary of the Closing Date, for so long as Fund VI owns any Common Stock, at each meeting of the stockholders of the Issuer, Fund VI will vote (i) in favor of each director nominated and recommended by the Board (or a duly authorized committee thereof) for election at any such meeting, (ii) against any stockholder nominations for directors which are not approved and recommended by the Board (or a duly authorized committee thereof) for election at any such meeting and (iii) otherwise in accordance with the Board’s recommendation on all proposals properly brought before any meeting of stockholders of the Issuer.

Transfer Restrictions

Fund VI further agreed that until the first anniversary of the Closing Date, Fund VI will not Transfer any of the Acquired Shares other than to a Permitted Transferee and beginning on the first anniversary of the Closing Date, Fund VI may Transfer up to 1,100,000 of the Acquired Shares (on a cumulative basis) in each of the calendar quarters following the one-year anniversary of the Closing Date. The Investment Agreement provides that all restrictions on Transfer automatically terminate on the earlier of (x) the date that is the second anniversary of the Closing Date and (y) a customary change of control fall-away.

A copy of the Investment Agreement is attached as Exhibit 2 and incorporated herein by reference. The foregoing description of the Investment Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit.

Promissory Note

On May 4, 2020, in connection with the Termination and Settlement Agreement, Amherst SFRP VI REIT, LLC, an affiliate of Fund VI (the “Amherst Noteholder”), entered into a Non-Negotiable Promissory Note (the “Promissory Note”) with the Issuer, pursuant to which, among other things, the Amherst Noteholder committed to make advances from time to time to the Issuer in an aggregate principal amount of up to $20 million.

The Promissory Note matures on May 4, 2022 and the outstanding principal balance thereof bears interest at LIBOR plus 5.00% per annum. Advances under the Promissory Note are available in multiple draws with minimum draw increments of $500,000, subject to prior written notice and absence of an event of default. Amounts under the Promissory Note can be repaid at any time and from time to time, without premium or penalty, and amounts repaid may be reborrowed.

The Promissory Note contains a limited set of customary representations and warranties, covenants and events of default, and does not contain any financial covenants.

A copy of the Promissory Note is attached as Exhibit 3 and incorporated herein by reference. The foregoing description of the Promissory Note does not purport to be complete and is qualified in its entirety by reference to such exhibit.

Joint Filing Agreement

On May 13, 2020, the Reporting Persons entered into a Joint Filing Agreement pursuant to which they agreed to the joint filing on behalf of each of them of this Schedule 13D (and any amendments thereto) with respect to the securities of the Issuer. Such Joint Filing Agreement is attached hereto as Exhibit 4.

Other Commercial Transactions

The Reporting Persons and their affiliates have in the past entered into, and in the future may enter into, commercial transactions with the Issuer and its subsidiaries in connection with their respective real estate ownership, management and financing operations (including, without limitation, the purchase, sale and financing of portfolios of single family residential homes).

Item 7. Material to be Filed as Exhibits

 

Exhibit Number		Description of Exhibits
1		Termination and Settlement Agreement, dated as of May 4, 2020, by and among Front Yard Residential Corporation, BAF Holdings, LLC, BAF Sub, LLC, and Amherst Single Family Residential Partners VI, LP.
2		Investment Agreement, dated as of May 4, 2020, by and between Front Yard Residential Corporation and Amherst Single Family Residential Partners VI, LP.
3		Non-Negotiable Promissory Note, issued May 4, 2020, by and between Front Yard Residential Corporation and Amherst SFRP VI REIT, LLC.
4		Joint Filing Agreement, dated May 13, 2020, by and among the Reporting Persons.

SIGNATURE

After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Date: May 13, 2020

 

SCHEDULE A

Amherst Residential, LLC

 

Name and Position		Principal Occupation		Principal Business Address		Citizenship
Sean Dobson Director		Chief Executive Officer Amherst Holdings, LLC		c/o Amherst Residential, LLC 5001 Plaza on the Lake, Suite 200 Austin, Texas 78746		USA
Andrew Flahive Director		President Amherst Residential, LLC		c/o Amherst Residential, LLC 5001 Plaza on the Lake, Suite 200 Austin, Texas 78746		USA
Eric Rosenzweig Director		Partner Stone Point Capital		c/o Stone Point Capital LLC 20 Horseneck Lane Greenwich, CT 06830		USA
Michael Conboy Director		Partner Luxor Capital Group, LP		c/o Luxor Capital Group, LP 1114 Avenue of the Americas, 28th Floor New York, NY 10036		USA

Amherst Holdings, LLC

 

Name and Position		Principal Occupation		Principal Business Address		Citizenship
Sean Dobson Director		Chief Executive Officer Amherst Holdings, LLC		c/o Amherst Holdings, LLC 5001 Plaza on the Lake, Suite 200 Austin, Texas 78746		USA
Steve Gorman Director		Retired		c/o Amherst Holdings, LLC 5001 Plaza on the Lake, Suite 200 Austin, Texas 78746		USA
Steve Coale Director		Senior Managing Director Amherst Pierpont Securities		c/o Amherst Holdings, LLC 5001 Plaza on the Lake, Suite 200 Austin, Texas 78746		USA
Deborah Shelling Director		Managing Director, Acquisitions Amherst Residential, LLC		c/o Amherst Holdings, LLC 5001 Plaza on the Lake, Suite 200 Austin, Texas 78746		USA
Nicholas Zerbib Director		Senior Principal Stone Point Capital		c/o Stone Point Capital LLC 20 Horseneck Lane Greenwich, CT 06830		USA

 

Exhibit 1

Execution Version

TERMINATION AND SETTLEMENT AGREEMENT

TERMINATION AND SETTLEMENT AGREEMENT, dated as of May 4, 2020 (this “Agreement”), among Front Yard Residential Corporation, a Maryland corporation (the “Company”), BAF Holdings, LLC, a Delaware limited liability company (“Parent”), BAF Sub, LLC, a Maryland limited liability company and a direct wholly owned Subsidiary of Parent (“Merger Sub”), and Amherst Single Family Residential Partners VI, LP (“Purchaser”).

WHEREAS, Parent, Merger Sub and the Company entered into an Agreement and Plan of Merger, dated as of February 17, 2020 (the “Merger Agreement”), pursuant to which the Company was to be merged with and into Merger Sub on the terms and subject to the conditions set forth in the Merger Agreement (the “Merger”); and

WHEREAS, the Company, on the one hand, and Parent and Merger Sub, on the other hand, have agreed that the Merger Agreement is to be terminated and the Merger abandoned pursuant to Section 8.1 of the Merger Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1. Definitions. Unless otherwise specifically defined in this Agreement, each capitalized term used but not defined in this Agreement shall have the meaning assigned to such term in the Merger Agreement.

ARTICLE II

SETTLEMENT

Section 2.1. Settlement.

(a) Simultaneously with the execution and delivery of this Agreement and in consideration of the agreements made herein, Purchaser and the Company each shall execute and deliver to each other that certain Investment Agreement, dated of even date herewith (the “Investment Agreement”), pursuant to which Purchaser shall purchase, and the Company shall sell, 4,400,000 shares of common stock, par value $0.01 per share, of the Company (the “Shares” and each, a “Share”) for a purchase price of $12.50 per Share.

(b) Simultaneously with the execution and delivery of this Agreement and in consideration of the agreements made herein, Amherst SFRP VI REIT, LLC and the Company each shall execute and deliver to each other that certain Non-Negotiable Promissory Note, dated of even date herewith (the “Promissory Note”), pursuant to which on the terms set forth therein, Amherst SFRP VI REIT, LLC shall provide a committed credit facility of Twenty Million Dollars ($20,000,000) to the Company.

(c) Promptly following the execution of this Agreement, and in no event later than the close of business on May 5, 2020, Parent shall pay, or cause to be paid, Twenty-Five Million Dollars ($25,000,000) in cash to the Company (the “Settlement Payment”); provided, that Purchaser specifically guarantees the obligation of Parent to pay the Settlement Payment. The Settlement Payment shall be paid by wire transfer in immediately available U.S. federal funds, to the account designated by the Company in writing on Exhibit A hereto. The Settlement Payment shall not be repayable or refundable under any circumstances, including the termination or expiration of the Investment Agreement.

ARTICLE III

TERMINATION

Section 3.1. Termination of Merger Agreement. Effective upon the receipt by the Company of the full amount of the Settlement Payment, pursuant to Section 8.1 of the Merger Agreement, and without further action of any party hereto, the Merger Agreement is hereby terminated in its entirety, is null and void, and is of no further force and effect with no liability on the part of any party to this Agreement (or any Company Related Party or Parent Related Party); provided, that (i) notwithstanding anything to the contrary in the Merger Agreement, the second sentence of Section 9.1 of the Merger Agreement shall also be terminated in its entirety, and none of the provisions specified therein shall survive termination of the Merger Agreement hereunder, (ii) the Confidentiality Agreement, dated August 31, 2019, between the Company and Amherst Residential, LLC (the “Company Confidentiality Agreement”) shall survive the termination of the Merger Agreement and will remain in full force and effect for one year following the date hereof and (iii) the letter agreement regarding confidentiality, dated December 6, 2019, between the Company and an affiliate of Parent (the “Amherst Confidentiality Agreement” and together with the Company Confidentiality Agreement, the “Confidentiality Agreements”) shall survive the termination of the Merger Agreement and will remain in full force and effect for one year following the date hereof. The termination of the Merger Agreement, once effective in accordance with the terms hereof, shall be irrevocable. The parties hereto acknowledge that by virtue of the termination of the Merger Agreement, the Equity Commitment Letter, the Limited Guarantee, the Debt Commitment Letter and the Voting Agreements shall terminate in accordance with their terms.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1. Representations and Warranties of the Company. The Company hereby represents and warrants that (a) it has all requisite corporate power and authority to enter into this Agreement and to take the actions contemplated hereby, (b) this Agreement has been duly authorized, executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, is the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms and (c) no consent of any third party is required for the execution, delivery and performance of this Agreement by the Company.

 

2

Section 4.2. Representations and Warranties of Parent, Merger Sub and Purchaser. Each of Parent, Merger Sub and Purchaser hereby represents and warrants that: (a) it has all requisite power and authority to enter into this Agreement and to take the actions contemplated hereby, (b) this Agreement has been duly authorized, executed and delivered by Parent, Merger Sub and Purchaser (as applicable) and, assuming this Agreement constitutes the valid and binding agreement of the Company, this Agreement is the valid and binding obligation of Parent, Merger Sub and Purchaser (as applicable), enforceable against Parent, Merger Sub and Purchaser (as applicable) in accordance with its terms and (c) no consent of any third party is required for the execution, delivery and performance of this Agreement by Parent, Merger Sub and Purchaser (as applicable).

ARTICLE V

RELEASES AND COVENANT NOT TO SUE

Section 5.1. Purchaser Release. Effective upon the receipt by the Company of the full amount of the Settlement Payment, each of Parent and Merger Sub, for itself and, to the maximum extent permitted by law, on behalf of its former, current or future officers, directors, employees, agents, representatives, parents, Subsidiaries, Affiliates, shareholders, managers, vendors and any predecessor entities, heirs, executors, administrators, successors and assigns of any said person or entity, and any other person claiming (now or in the future) through or on behalf of any of said person or entities (“Purchaser Releasing Parties”), hereby unequivocally, fully and irrevocably releases and discharges the Company, the Company Related Parties and their respective former, current or future directors, officers, employees, members, managers, partners, shareholders, agents or Representatives, advisors, attorneys, accountants, insurers, predecessor entities, heirs, executors, administrators, successors and assigns of any said person or entity (collectively, “Company Released Persons”), from any and all past, present, direct, indirect and/or derivative liabilities, claims, rights, actions, causes of action, counts, obligations, sums of money due, attorneys’ fees, suits, debts, covenants, agreements, promises, demands, damages and charges of whatever kind or nature, known or unknown, in law or in equity, asserted or that could have been asserted, under federal or state statute, or common law or the laws of any other relevant jurisdiction, arising from or out of, based upon, in connection with or otherwise relating in any way to the Merger Agreement (including, for the avoidance of doubt, the negotiation thereof and all due diligence activities and other actions or activities undertaken in connection therewith, collectively, the “Transaction Matters”), the Equity Commitment Letter, the Limited Guarantee, the Debt Commitment Letter, the Voting Agreements or the transactions or payments contemplated by any of the foregoing, including any claim relating to the termination of the Merger Agreement (the “Purchaser Released Claims”); provided, that, for the avoidance of doubt, nothing contained in this Agreement shall be deemed to release any party hereto from its obligations under (x) this Agreement, the Investment Agreement, the Promissory Note or the transactions contemplated hereby or thereby or (y) the Confidentiality Agreements.

 

3

Section 5.2. Company Release. Effective upon the receipt by the Company of the full amount of the Settlement Payment, the Company, for itself and, to the maximum extent permitted by law, on behalf of its former, current or future officers, directors, employees, agents, representatives, parents, Subsidiaries, Affiliates, shareholders, managers, vendors and any predecessor entities, heirs, executors, administrators, successors and assigns of any said person or entity, and any other person claiming (now or in the future) through or on behalf of any of said person or entities (“Company Releasing Parties” and together with the Purchaser Releasing Parties, the “Releasing Parties”), hereby unequivocally, fully and irrevocably releases and discharges each of Parent, Purchaser, Merger Sub, the Parent Related Parties and their respective former, current or future directors, officers, employees, members, managers, partners, shareholders, agents or Representatives, advisors, attorneys, accountants, insurers, predecessor entities, heirs, executors, administrators, successors and assigns of any said person or entity (collectively, “Purchaser Released Persons” and together with the Company Released Persons, the “Released Persons”), from any and all past, present, direct, indirect and/or derivative liabilities, claims, rights, actions, causes of action, counts, obligations, sums of money due, attorneys’ fees, suits, debts, covenants, agreements, promises, demands, damages and charges of whatever kind or nature, known or unknown, in law or in equity, asserted or that could have been asserted, under federal or state statute, or common law or the laws of any other relevant jurisdiction, arising from or out of, based upon, in connection with or otherwise relating in any way to the Merger Agreement (including, for the avoidance of doubt, the Transaction Matters), the Equity Commitment Letter, the Limited Guarantee, the Debt Commitment Letter, the Voting Agreements or the transactions or payments contemplated by any of the foregoing, including any claim relating to the termination of the Merger Agreement (the “Company Released Claims,” and, together with the Purchaser Released Claims, the “Released Claims”); provided, that, for the avoidance of doubt, nothing contained in this Agreement shall be deemed to release any party hereto from its obligations under (x) this Agreement, the Investment Agreement, the Promissory Note or the transactions contemplated hereby or thereby or (y) the Confidentiality Agreements.

Section 5.3. Scope of Release and Discharge.

(a) The parties, on behalf of the respective Releasing Parties, acknowledge and agree that they may be unaware of or may discover facts in addition to or different from those which they now know, anticipate or believe to be true related to or concerning the Released Claims. The parties know that such presently unknown or unappreciated facts could materially affect the claims or defenses of a party or parties. It is nonetheless the intent of the parties to give a full, complete and final release and discharge of the Released Claims. In furtherance of this intention, the releases herein given shall be and remain in effect as full and complete releases with regard to the Released Claims notwithstanding the discovery or existence of any such additional or different claim or fact. To that end, with respect to the Released Claims only, the parties expressly waive and relinquish any and all provisions, rights and benefits conferred by any law of the United States or of any state or territory of the United States or of any other relevant jurisdiction, or principle of common law, under which a general release does not extend to claims which the parties do not know or suspect to exist in their favor at the time of executing the release, which if known by the parties might have affected the parties’ settlement. With respect to the Released Claims only, the parties expressly waive and relinquish, to the fullest extent permitted by law, the provisions, rights, and benefits of §1542 of the California Civil Code (or any similar, comparable or equivalent provisions), which provides:

 

4

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

(b) The parties acknowledge and agree that the inclusion of this Section 5.3 was separately bargained for and is a key element of this Agreement.

Section 5.4. Covenant Not to Sue. Each of (a) the Company, on behalf of itself and the Company Releasing Parties, and (b) Parent and Merger Sub, on behalf of itself and the Purchaser Releasing Parties, covenants not to bring any Released Claim before any court, arbitrator, or other tribunal in any jurisdiction, whether as a claim, a cross claim, or counterclaim. Any Released Person may plead this Agreement as a complete bar to any Released Claim brought in derogation of this covenant not to sue. The covenants contained in this Section 5.4 shall become effective on the date hereof and shall survive this Agreement indefinitely regardless of any statute of limitations, but the covenants contained in this Section 5.4 shall terminate automatically if the Company does not receive the full amount of the Settlement Payment by the close of business on May 5, 2020.

Section 5.5. Accord and Satisfaction. This Agreement and the releases reflected herein shall be effective as a full, final and irrevocable accord and satisfaction and release of all of the Released Claims.

Section 5.6. Non-Disparagement. Other than as a party may determine (based on the advice of counsel) is necessary or appropriate to respond to any legal or regulatory process or proceeding or to give appropriate testimony or file any necessary documents in any legal or regulatory proceeding, or deliberations of the board of directors of the Company or Parent, no party to this Agreement shall make any public statements or any private statements that disparage, denigrate or malign the other parties or the Released Persons concerning the subject matter of this Agreement and the Merger Agreement or the business or practices of the other parties hereto. Nothing contained in this Section 5.6 shall prohibit a party from making any public or private statement that is factually accurate.

ARTICLE VI

MISCELLANEOUS

Section 6.1. Admission. This Agreement constitutes the settlement of disputed and possible future claims; it does not and shall not constitute an admission of liability by any of the parties.

Section 6.2. Modification or Amendment. This Agreement may only be amended, modified or supplemented in writing by the parties hereto, by action of the boards of directors (or similar bodies) of the respective parties.

 

5

Section 6.3. Waiver. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise herein provided, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

Section 6.4. Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts (including by attachment to electronic mail in portable document format (PDF)), each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

Section 6.5. Governing Law and Venue; Waiver of Jury Trial.

(a) THIS AGREEMENT AND ANY DISPUTES ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. Notwithstanding the foregoing, all matters relating to the duties of the board of directors of the Company shall be governed by and construed in accordance with the Laws of the State of Maryland without regard to the conflicts of law principles thereof to the extent that such principles would direct a matter to another jurisdiction.

(b) Each of the parties (i) irrevocably submits exclusively to the jurisdiction of the Chancery Courts of the State of Delaware (the “Chancery Court”) or, if the Chancery Court declines jurisdiction, any other Delaware state court, and the federal courts of the United States of America, in each case, located in New Castle County in the State of Delaware (collectively, “Chosen Courts”) in the event any dispute arises out of this Agreement or any of the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any Proceeding by or before any Governmental Entity relating to this Agreement or any of the transactions contemplated hereby in any court other than the Chosen Courts, (iv) waives any objection that it may now or hereafter have to the venue of any such Proceeding in the Chosen Courts or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same and (v) consents to service being made through the notice procedures set forth in Section 6.6. Each of the Company and the Purchaser hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 6.6 shall be effective service of process for any Proceeding in connection with this Agreement or the transactions contemplated hereby.

 

6

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.5.

Section 6.6. Notices. Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed given, (a) when delivered, if delivered personally to the intended recipient, (b) upon transmission, if sent by email (provided no “bounceback” or notice of non-delivery is received) and (c) one Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, addressed to a party at the following address for such party:

 

if to the Company
Front Yard Residential Corporation
5100 Tamarind Reef
Christiansted, United States Virgin Islands 00820
Attention:		Michael Lubin
Email:		frontyardresidential@altisourceamc.com
with copies to (which shall not constitute notice):
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention:		Michael J. Aiello
		Sachin Kohli
Email:		michael.aiello@weil.com
		sachin.kohli@weil.com
if to Parent or Merger Sub:
c/o Amherst Residential, LLC
5001 Plaza on the Lake, Suite 200
Austin, TX 78746
Attention:		Joseph Gatti
Email: jgatti@amherst.com

 

7

with copies to (which shall not constitute notice):
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention:		Eduardo Gallardo
Email:		egallardo@gibsondunn.com

or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided above.

Section 6.7. Entire Agreement. This Agreement, the Investment Agreement, the letter agreement regarding confidentiality, dated August 31, 2019, between the Company and an affiliate of Purchaser (as amended on the date hereof), the letter agreement regarding confidentiality, dated December 6, 2019, between the Company and an affiliate of Purchaser, the waiver letter agreement regarding ownership of Shares dated as of the date hereof, by and between the Company and Purchaser, and the Promissory Note (including any exhibits to the foregoing agreements) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.

Section 6.8. No Third-Party Beneficiaries. This Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder.

Section 6.9. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision negotiated in good faith by the parties hereto shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not, subject to clause (a) above, be affected by such invalidity or unenforceability, except as a result of such substitution, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 6.10. Interpretation. The Article, Section and paragraph headings or captions herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” when used in this Agreement is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the

 

8

masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

Section 6.11. Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the other parties hereto, and any assignment without such consent shall be null and void.

Section 6.12. Specific Performance. The parties hereto acknowledge and agree that irreparable damage would occur and that the parties would not have any adequate remedy at Law in the event that any of the obligations, undertakings, covenants or agreements of the parties to this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by the other party, and to enforce specifically the terms and provisions of this Agreement by a decree of specific performance, in accordance with Section 6.5 of this Agreement, without the necessity of proving actual harm or damages or posting a bond or other security therefor, this being in addition to any other remedy to which such party is entitled at law or in equity, and each party agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance or other equitable remedy is not an appropriate remedy for any reason at law or in equity.

[Remainder of page intentionally left blank]

 

9

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

 

[Signature Page to Termination and Settlement Agreement]

[Signature Page to Termination and Settlement Agreement]

Exhibit 2

 

 

 

INVESTMENT AGREEMENT

by and between

Front Yard Residential Corporation

and

Amherst Single Family Residential Partners VI, LP

Dated as of May 4, 2020

 

 

 

INVESTMENT AGREEMENT

INVESTMENT AGREEMENT, dated as of May 4, 2020 (this “Agreement”), by and between Front Yard Residential Corporation, a Maryland corporation (the “Company”), and Amherst Single Family Residential Partners VI, LP, a Delaware limited partnership (together with its successors and any Permitted Transferee, the “Purchaser”).

WHEREAS, the Company, BAF Holdings, LLC (“Parent”) and BAF Sub, LLC (“Merger Sub”) previously entered into an Agreement and Plan of Merger, dated as of February 17, 2020 (the “Merger Agreement”), pursuant to which the Company was to be merged with and into Merger Sub on the terms and subject to the conditions set forth in the Merger Agreement (the “Merger”);

WHEREAS, concurrently with the execution of this Agreement, (i) the parties to the Merger Agreement (and Purchaser) are entering into a Termination and Settlement Agreement and (ii) the Company and an affiliate of the Purchaser are entering into a Non-Negotiable Promissory Note (the “Promissory Note”); and

WHEREAS, in accordance with the terms set forth herein, the Company desires to issue, sell and deliver to the Purchaser, and the Purchaser desires to purchase and acquire from the Company, an aggregate of 4,400,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”).

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

ARTICLE I

Definitions

Section 1.01 Definitions. (a) As used in this Agreement (including the recitals hereto), the following terms shall have the following meanings:

“Acquired Shares” has the meaning given to it in Section 2.01.

“Affiliate” means, when used with respect to any Person, any other Person who controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

“Agreement” has the meaning given to it in the preamble.

“Asset Sale Transaction” has the meaning given to it in Section 5.07.

“Bankruptcy and Equity Exception” has the meaning given to it in Section 3.03.

“beneficially own,” “beneficial ownership of” or “beneficially owning” any securities shall have the meaning set forth in Rule 13d-3 of the rules and regulations under the Exchange Act.

“Board” means the Board of Directors of the Company.

“Business Day” means any day of the year on which banks are not required or authorized by Law to close in New York City.

“Chancery Court” has the meaning given to it in Section 7.04.

“Change of Control Date” has the meaning given to it in Section 5.06(d).

“Chosen Courts” has the meaning given to it in Section 7.04.

“Closing” has the meaning given to it in Section 2.02.

“Closing Date” has the meaning given to it in Section 2.02.

“Company” has the meaning given to it in the preamble.

“Company Charter Documents” means the Company’s charter (as amended, restated or supplemented as of the date hereof) or the Amended and Restated Bylaws of the Company, effective as of February 21, 2018.

“Company Stock Plans” means the Front Yard Residential Corporation Conversion Option Plan, the Front Yard Residential Corporation Special Conversion Option Plan, Front Yard Residential Corporation 2016 Equity Incentive Plan or the Front Yard Residential Corporation 2019 Equity Incentive Plan.

“Excess Shares” means a number of Acquired Shares that could have been Transferred by Purchaser in the prior quarters (determined on a cumulative basis) but were not Transferred by Purchaser.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Financing Transaction” has the meaning given to it in Section 5.07.

“GAAP” means generally accepted accounting principles in the United States, consistently applied.

“Governmental Authority” means any government, court, regulatory or administrative agency, commission, arbitrator (public or private) or authority or other legislative, executive or judicial governmental entity (in each case including any self-regulatory organization), whether federal, state or local, domestic, foreign or multinational.

“Judgment” means any order, judgment, injunction, ruling, writ, award or decree of any Governmental Authority.

 

2

“Law” means any federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation.

“Liens” means liens, encumbrances, mortgages, charges, claims, restrictions, pledges, security interests, title defects, easements, rights-of-way, covenants, encroachments or other adverse claims of any kind with respect to a property or asset.

“Material Adverse Effect” means, with respect to the Company and its Subsidiaries, any change, effect, event, occurrence, development, circumstance, condition or effect that, individually or in the aggregate (x) has or would reasonably be expected to prevent or materially impair or delay the ability of the Company and its Subsidiaries, to consummate the transactions contemplated hereby or (y) has had or would reasonably be expected to have a material adverse effect on the financial condition, properties, assets, business or results of operations of the Company and its Subsidiaries, taken as a whole, excluding for the purposes of clause (y), any such effect resulting from or arising in connection with: (1) changes in, or events generally affecting, the financial, securities or capital markets, (2) general economic or political conditions in the United States or any foreign jurisdiction in which the Company or any of its Subsidiaries operate, including any changes in currency exchange rates, interest rates, monetary policy or inflation, (3) changes in, or events generally affecting, the industries in which the Company or any of its Subsidiaries operate, (4) any acts of war, pandemic (including COVID-19), sabotage, civil disobedience or terrorism or natural disasters (including hurricanes, tornadoes, floods or earthquakes), (5) any failure by the Company or any of its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions in respect of financial performance for any period, (6) a decline in the price of the Shares, or a change in the trading volume of the Shares, on the NYSE, including as a result of the termination of the Merger Agreement, provided, that the exceptions in clauses (5) and (6) shall not prevent or otherwise affect a determination that any change, effect, circumstance or development underlying such failure or decline or change (if not otherwise falling within any of the exclusions pursuant to the other clauses of this definition) has resulted in, or contributed to, a Company Material Adverse Effect, (7) changes in applicable Law, (8) changes in GAAP (or authoritative interpretation thereof), (9) the taking of any specific action expressly required by this Agreement or taken with Purchaser’s written consent, (10) the announcement or pendency (but, for the avoidance of doubt, not the consummation) of this Agreement, including the impact thereof on the relationships with customers, suppliers, distributors, partners, other third parties with whom the Company has a relationship or (11) any litigation brought by stockholders of the Company or the Purchaser alleging breach of duty or inadequate disclosure in connection with this Agreement or any of the transactions contemplated hereby (it being understood and agreed that the exception in this clause (11) shall apply to the effects arising out of or relating to the bringing of such litigation and not those arising out of or resulting from an actual breach (or other claim) that is the subject thereof); provided, that the changes, effects, circumstances or developments set forth in the foregoing clauses (1), (2), (3), (4), (7) and (8) shall be taken into account in determining whether a “Material Adverse Effect” has occurred to the extent such changes, effects, circumstances or developments have a disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the industries in which the Company and its Subsidiaries operate (but only the incremental disproportionate effect on the Company and its Subsidiaries, taken as a whole).

“Measurement Date” has the meaning set forth in Section 3.02.

 

3

“Merger” has the meaning given to it in the recitals.

“Merger Agreement” has the meaning given to it in the recitals.

“Merger Sub” has the meaning given to it in the recitals.

“MGCL” means the Maryland General Corporation Law, as amended, supplemented or restated from time to time.

“Parent” has the meaning given to it in the recitals.

“Permitted Transferee” means, with respect to any Person, any Affiliate of such Person.

“Person” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a Governmental Authority.

“Preferred Shares” has the meaning given to it in Section 3.02.

“Promissory Note” has the meaning given to it in the recitals.

“Purchase” has the meaning given to it in Section 2.01.

“Purchase Price” has the meaning given to it in Section 2.01.

“Purchaser” has the meaning given to it in the preamble.

“Purchaser Material Adverse Effect” means any event, change, circumstance or effect that, individually or in the aggregate, prevents, materially delays, materially impairs or has a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement (including paying the Purchase Price).

“Representatives” means, with respect to any Person, its officers, directors, principals, partners, managers, members, employees, consultants, agents, financial advisors, investment bankers, attorneys, accountants, other advisors and other representatives.

“Restrictive Legend” has the meaning given to it in Section 5.04(a).

“Quarterly Cap” has the meaning given to it in Section 5.06(b)(ii).

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Shares” has the meaning given to it in the recitals.

“Standstill Termination” has the meaning given to it in Section 5.02(a).

 

4

“Subsidiary” means, with respect to any Person, any other Person with respect to which the first Person (x) has the voting power or such other right to elect a majority of the board of directors or other persons performing similar functions or (y) beneficially owns more than fifty percent (50%) of the voting stock (or of any other form of voting or controlling equity interest in the case of a Person that is not a corporation) or economic interest, in each case, directly or indirectly through one or more other Persons.

“Termination and Settlement Agreement” means that certain agreement, dated as of the date hereof, by and between the Company, the Purchaser, Parent and Merger Sub.

“Transaction Documents” means this Agreement, the Termination and Settlement Agreement, the Promissory Note and all other documents, certificates or agreements executed in connection with the transactions contemplated by this Agreement and the Termination and Settlement Agreement.

“Transactions” means the transactions expressly contemplated by this Agreement and the other Transaction Documents.

“Transfer” by any Person means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or otherwise dispose of or transfer (by the operation of law or otherwise), or to enter into any contract, option or other arrangement, agreement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or other disposition or transfer (by the operation of law or otherwise), of any voting interest in any equity securities beneficially owned by such Person; provided, that transfers of any equity interests in Amherst Single Family Residential Partners VI, LP or any parent company thereof shall not be deemed a Transfer.

ARTICLE II

Purchase and Sale

Section 2.01 Purchase and Sale. At the Closing, the Purchaser shall purchase and acquire from the Company an aggregate of 4,400,000 Shares, and the Company shall issue, sell and deliver to the Purchaser, such Shares (the “Acquired Shares”) for a purchase price per Acquired Share equal to $12.50 in cash and an aggregate purchase price of $55,000,000 (such aggregate purchase price, the “Purchase Price”). The purchase and sale of the Acquired Shares pursuant to this Section 2.01 is referred to as the “Purchase.”

Section 2.02 Closing. (a) The closing of the sale and purchase of the Acquired Shares (the “Closing”) shall occur at 10:00 a.m. (New York City time) as promptly as reasonable practicable following the date of this Agreement on a date selected by Purchaser that is no later than May 19, 2020, at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, or at such other place, time and date as shall be agreed between the Company and the Purchaser (the date on which the Closing occurs, the “Closing Date”). The Purchaser shall provide the Company with at least two (2) Business Days prior written notice of the Closing Date.

 

5

(b) At the Closing, (i) the Company shall deliver to the Purchaser the Acquired Shares free and clear of all Liens, except restrictions imposed by this Agreement, the Securities Act and any applicable securities Laws and (ii) the Purchaser shall pay (or cause to be paid) the Purchase Price to the Company, by wire transfer in immediately available U.S. federal funds, to the account designated by the Company in writing.

ARTICLE III

Representations and Warranties of the Company

The Company hereby represents and warrants to the Purchaser as follows:

Section 3.01 Organization and Good Standing. The Company is a legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and is qualified to do business and is in good standing as a foreign legal entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so organized, qualified or in good standing, or to have such power or authority, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.02 Equity Capital Structure. The authorized capital stock of the Company consists of (A) 200,000,000 Shares and (B) 100,000,000 preferred shares, par value $0.01 per share (the “Preferred Shares”). As of the close of business on May 1, 2020 (the “Measurement Date”), 54,070,851 Shares were issued and outstanding and no Preferred Shares were issued and outstanding. All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive rights, were issued in accordance with applicable Law and were not issued in violation of any preemptive or other similar rights. As of the Measurement Date there were an aggregate of 1,650,071 Shares reserved for, and 2,456,856 Shares subject to, issuance pursuant to the Company Stock Plans. Except as provided in the preceding sentence and except for Shares that after the date hereof become reserved for issuance or subject to issuance as permitted under this Agreement, the Company has no Shares reserved for, or subject to, issuance. The Company has no Preferred Shares or other shares of capital stock reserved for or subject to issuance (it being understood that “other shares of capital stock” shall not include Shares).

Section 3.03 Authority; Noncontravention. (a) The Company has full right, power and authority to execute and deliver this Agreement and the other Transaction Documents and to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents, and the consummation by it of the Transactions, have been duly authorized by the Board (or a duly authorized committee thereof) and no other action on the part of the Company or its stockholders is necessary to authorize the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents and the consummation by it of the Transactions. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Purchaser, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity (the “Bankruptcy and Equity Exception”).

 

6

(b) Neither the execution and delivery of this Agreement or the other Transaction Documents by the Company, nor the consummation of the Transactions by the Company, nor performance or compliance by the Company with any of the terms or provisions hereof or thereof, will (i) conflict with or violate any provision of the Company Charter Documents, or (ii)(x) violate any Law or Judgment applicable to the Company or any of its Subsidiaries or (y) violate or constitute a default (or constitute an event which, with notice or lapse of time or both, would violate or constitute a default) under any of the terms, conditions or provisions of any Contract (as defined in the Merger Agreement) to which the Company or any of its Subsidiaries is a party or accelerate the Company’s or any of its Subsidiaries’, if applicable, obligations under any such Contract, except, in the case of clause (ii), as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.04 No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority is required for the execution and delivery of this Agreement and the other Transaction Documents by the Company, the performance by the Company of its obligations hereunder and thereunder and the consummation by the Company of the Transactions, except for (a) filings with the SEC under the Securities Act and Exchange Act, (b) filing pursuant to state securities or blue sky laws, (c) the filing and approval of a Supplemental Listing Application with the New York Stock Exchange and (d) such consents, approvals, authorizations, orders, registrations or qualifications (i) as have already been made or obtained or (ii) where the failure to obtain any such consent, approval, authorization, order, registration or qualification would not, individually or in the aggregate, have a Material Adverse Effect.

Section 3.05 Brokers and Finders. The Company has not employed any broker or finder or incurred any liability for any brokerage fees, commissions or finders’ fees in connection with the Merger or the other transactions contemplated in this Agreement, except that the Company has engaged Deutsche Bank as the Company’s financial advisor, the fees and expenses of which shall be paid solely by the Company.

Section 3.06 No Other Representations or Warranties. Except for the representations and warranties made by the Company in this Article III, in any Transaction Documents or in any certificate or other document delivered in connection with this Agreement or the Transaction Documents, neither the Company nor any other Person acting on its behalf makes any other express or implied representation or warranty with respect to the Shares, the Company or any of its Subsidiaries or their respective businesses, operations, properties, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to the Purchaser or its Representatives of any documentation, forecasts or other information with respect to any one or more of the foregoing, and the Purchaser acknowledges the foregoing. In particular, and without limiting the generality of the foregoing, except for the representations and warranties made by the Company in this Article III, the Transaction Documents, or in any certificate or other document delivered in connection with this Agreement or the Transaction Documents, neither the Company

 

7

nor any other Person makes or has made any express or implied representation or warranty to the Purchaser or its Representatives with respect to (a) any financial projection, forecast, estimate, budget or prospect information relating to the Company, any of its Subsidiaries or their respective businesses or (b) any oral or written information presented to the Purchaser or its Representatives in the course of its due diligence investigation of the Company, the negotiation of this Agreement or the course of the Transactions or any other transactions or potential transactions involving the Company and the Purchaser.

ARTICLE IV

Representations and Warranties of the Purchaser

The Purchaser represents and warrants to the Company:

Section 4.01 Organization; Standing. The Purchaser is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all requisite power and authority to consummate the transactions contemplated hereby.

Section 4.02 Authority; Noncontravention. (a) The Purchaser has all necessary power and limited partnership authority to execute and deliver this Agreement and the other Transaction Documents to which it is a party and to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by the Purchaser of this Agreement and the other Transaction Documents to which it is a party, and the consummation by the Purchaser of the Transactions, have been duly authorized and approved by all necessary action on the part of the Purchaser, and no further action, approval or authorization by any of its members, is necessary to authorize the execution, delivery and performance by the Purchaser of this Agreement and the other Transaction Documents and the consummation by the Purchaser of the Transactions. This Agreement has been duly executed and delivered by the Purchaser and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except that such enforceability may be limited by the Bankruptcy and Equity Exception.

(b) Neither the execution and delivery of this Agreement or the other Transaction Documents by the Purchaser, nor the consummation of the Transactions by the Purchaser, nor performance or compliance by the Purchaser with any of the terms or provisions hereof or thereof, will (i) conflict with or violate any provision of the limited partnership agreement of the Purchaser, or (ii)(x) violate any Law or Judgment applicable to the Purchaser or any of its Subsidiaries or (y) violate or constitute a default (or constitute an event which, with notice or lapse of time or both, would violate or constitute a default) under any of the terms, conditions or provisions of any Contract to which the Purchaser or any of its Subsidiaries is a party or accelerate the Purchaser’s or any of its Subsidiaries’, if applicable, obligations under any such Contract, except, in the case of clause (ii), as would not, individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect.

 

8

Section 4.03 No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority is required for the execution and delivery of this Agreement and the other Transaction Documents by the Purchaser, the performance by the Purchaser of its obligations hereunder and thereunder and the consummation by the Purchaser of the Transactions, except for such consents, approvals, authorizations, orders, registrations or qualifications (i) as have already been made or obtained or (ii) where the failure to obtain any such consent, approval, authorization, order, registration or qualification would not, individually or in the aggregate, have a Purchaser Material Adverse Effect.

Section 4.04 Financing. The Purchaser currently has capital commitments sufficient to, and at the Closing will have available funds necessary to, consummate the Purchase and pay the Purchase Price on the terms and conditions contemplated by this Agreement. The Purchaser is not aware of any reason why the funds sufficient to fulfill its obligations under Article II (including paying the Purchase Price) will not be available on the Closing Date.

Section 4.05 Brokers and Finders. The Purchaser has not employed any broker or finder or incurred any liability for any brokerage fees, commissions or finders’ fees in connection with the Merger or the other transactions contemplated in this Agreement, except for Persons whose fees and expenses shall be paid by the Purchaser or its affiliates.

Section 4.06 Ownership of Shares; Interested Stockholder. Neither the Purchaser nor any of its Affiliates beneficially owns, directly or indirectly, any Shares, any rights or options to acquire any Shares, or any securities or instruments convertible into, exchangeable for, or exercisable for Shares and neither the Purchaser nor any of its Affiliates has any rights to acquire any Shares except pursuant to this Agreement and the Merger Agreement (which is being terminated pursuant to the Settlement Agreement). Neither the Purchaser nor any of its Affiliates is, nor at any time has been, an “interested stockholder” of the Company as defined in Section 3-601 of the MGCL.

Section 4.07 Purchase for Investment. The Purchaser acknowledges that the Acquired Shares have not been registered under the Securities Act or under any state or other applicable securities laws. The Purchaser (a) acknowledges that it is acquiring the Acquired Shares pursuant to an exemption from registration under the Securities Act solely for investment with no intention to distribute any of the foregoing to any Person, (b) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of its investment in the Acquired Shares and of making an informed investment decision, (c) is an “accredited investor” (as that term is defined by Rule 501 of the Securities Act), (d) is a “qualified institutional buyer” (as that term is defined in Rule 144A of the Securities Act) and (e) (1) has reviewed the information that it considers necessary or appropriate to make an informed investment decision with respect to the Acquired Shares, (2) has had an opportunity to discuss with the Company and its Representatives the intended business and financial affairs of the Company and to obtain information necessary to verify the information furnished to it or to which it had access and (3) can bear the economic risk of (i) an investment in the Acquired Shares indefinitely and (ii) a total loss in respect of such investment. The Purchaser has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of, and form an investment decision with respect to its investment in, the Acquired Shares.

 

9

Section 4.08 Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans. In connection with the due diligence investigation of the Company by the Purchaser and its respective Representatives, the Purchaser and its respective Representatives have received and may continue to receive from the Company and its Representatives certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan information, in each case containing forward-looking information, regarding the Company and its Subsidiaries and their respective businesses and operations. The Purchaser hereby acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business plans to the extent each of them contain forward-looking information, with which the Purchaser is familiar, that the Purchaser is making its own evaluation of the adequacy and accuracy of such forward-looking information so furnished to the Purchaser (including the reasonableness of the assumptions underlying such forward-looking information), and that except for the representations and warranties made by the Company in Article III, the Transaction Documents and in any certificate or other document delivered in connection with this Agreement or the Transaction Documents, and other than for fraud, the Purchaser will have no claim against the Company or any of its Subsidiaries, or any of their respective Representatives, with respect thereto.

Section 4.09 No Other Representations or Warranties. Except for the representations and warranties made by the Purchaser in this Article IV, the Transaction Documents and in any certificate or other document delivered in connection with this Agreement or the Transaction Documents, neither the Purchaser nor any other Person acting on its behalf makes any other express or implied representation or warranty with respect to the Purchaser or any of its Affiliates or their respective businesses, operations, properties, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to the Company or its Representatives of any documentation, forecasts or other information with respect to any one or more of the foregoing, and the Company acknowledges the foregoing. In particular, and without limiting the generality of the foregoing, except for the representations and warranties made by the Purchaser in this Article IV, the Transaction Documents and in any certificate or other document delivered in connection with this Agreement or the Transaction Documents, neither the Purchaser nor any other Person makes or has made any express or implied representation or warranty to the Purchaser or its Representatives with respect to any oral or written information presented to the Company or its Representatives in the course of its due diligence investigation of the Company, the negotiation of this Agreement or the course of the Transactions or any other transactions or potential transactions involving the Company and the Purchaser.

ARTICLE V

Additional Agreements

Section 5.01 Public Disclosure. The Purchaser and the Company shall consult with each other before issuing, and give each other the opportunity to review and comment upon, the initial press release with respect to the Transaction Documents and the Transactions. Additionally, the parties acknowledge that, in connection with the execution and delivery of this Agreement, the Company will file a Current Report on Form 8-K and the Purchaser will file a Schedule 13D with the SEC, each of which will report the entry into this Agreement. The Schedule 13D and the Form 8-K shall be in form and substance reasonably acceptable to the Company and the Purchaser, respectively.

 

10

Section 5.02 Standstill.

(a) The Purchaser agrees that until the two-year anniversary of the Closing Date (the “Standstill Termination”), without the prior written approval of the Board, the Purchaser will not, directly or indirectly, and will cause its Affiliates not to, make any short sale of, or enter into any hedging or similar transaction with the same economic effect as a short sale of, any Shares, or otherwise establish or increase, directly or indirectly, a put equivalent position, as defined in Rule 16a-1(h) under the Exchange Act, with respect to any of the Shares (it being agreed that any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in (or with respect to) securities of other industry participants shall not be restricted).

(b) Except as may be provided by the prior written approval of the Board, the Purchaser agrees that until the Standstill Termination the Purchaser will not, and will cause its Affiliates not to, directly or indirectly, in any manner:

(i) acquire, offer or seek to acquire, agree to acquire or make a public proposal to acquire, by purchase or otherwise, any equity securities of the Company, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of Shares (it being agreed that any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in (or with respect to) securities of other industry participants shall not be restricted); provided, that following the Closing, subject to Section 7.2 of the Company’s Articles of Restatement, as amended, the Purchaser and its Affiliates may acquire additional Shares so long as the Purchaser and its Affiliates beneficially own, in the aggregate, no more than 9.8% of the Company’s then-outstanding Shares;

(ii) make or in any way participate in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal or action by the Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director from the Board;

(iii) make any public announcement with respect to, or propose any merger or business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any of its Subsidiaries, or any other extraordinary transaction involving the Company or any of its Subsidiaries, or enter into any arrangements, understandings or agreements with any other Person regarding any of the foregoing (other than as permitted pursuant to Section 5.06);

(iv) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, Board or policies of the Company or any of its Subsidiaries;

(v) except as set forth herein, publicly make any proposal to the Company or its management or Board with respect to, or issue any press releases or make any statements which could reasonably be expected to become public with respect to: (A) any change in the number or term of directors or the filling of any vacancies on the Board, (B) any material change in the

 

11

capitalization or dividend policy of the Company, (C) any other change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Company Charter Documents, or other actions which may impede the acquisition of control of the Company by any person in any way whatsoever, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;

(vi) make any request for stock list materials or other books and records of the Company under Maryland law;

(vii) make any public proposal or statement of inquiry or publicly disclose any intention, plan or arrangement consistent with the foregoing;

(viii) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;

(ix) take any action that would, in effect, require the Company to make a public announcement with respect to any of the foregoing;

(x) enter into any arrangements or understandings with any third party (including, without limitation, security holders of the Company) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) with any third party with respect to any of the foregoing; or

(xi) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.02, provided that this clause shall not prohibit the Purchaser from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.02, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by the Company and, provided further, that notwithstanding anything to the contrary in this Section 5.02, the Purchaser and its Affiliates may at any time communicate privately with the Company’s directors, officers or advisors or submit to the Board one or more confidential proposals or offers for a transaction (including a transaction that, if consummated, would result in a change of control of the Company), so long as, in each case, such communications and submissions are not intended to, and would not reasonably be expected to, require any public disclosure by the Company of such communications or submissions, as applicable.

(c) The obligations under this Section 5.02 shall automatically terminate upon a Change of Control Date.

Section 5.03 Voting.

(a) The Purchaser agrees that until the two-year anniversary of the Closing Date, for so long as the Purchaser owns any Shares, at each meeting of the stockholders of the Company and at every postponement or adjournment thereof, the Purchaser shall take such action as may be required so that all of the Shares beneficially owned, directly or indirectly, by the

 

12

Purchaser and its Affiliates and entitled to vote at such meeting of stockholders are voted (i) in favor of each director nominated and recommended by the Board (or a duly authorized committee thereof) for election at any such meeting, (ii) against any stockholder nominations for directors which are not approved and recommended by the Board (or a duly authorized committee thereof) for election at any such meeting and (iii) otherwise in accordance with the Board’s recommendation on all proposals properly brought before any meeting of stockholders of the Company.

(b) The Purchaser agrees that until the two-year anniversary of the Closing Date, for so long as the Purchaser owns any Shares, the Purchaser shall (to the extent necessary to comply with this Section 5.03) be present, in person or by proxy, at all meetings of the stockholders of the Company so that all Shares beneficially owned by the Purchaser and its Affiliates may be counted for the purposes of determining the presence of a quorum and voted in accordance with Section 5.03(a) at such meetings (including at any adjournments or postponements thereof).

Section 5.04 Legend. (a) All Acquired Shares will bear a legend (the “Restrictive Legend”) substantially to the following effect:

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS, OR WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS AND (II) THE EXCEPTIONS TO THE RESTRICTIONS ON TRANSFER UNDER THE INVESTMENT AGREEMENT, DATED MAY 4, 2020 BETWEEN THE ISSUER AND AMHERST SINGLE FAMILY RESIDENTIAL PARTNERS VI, LP.

(b) Upon request of the Purchaser, the Restrictive Legend will be removed on such number of Acquired Shares equal to the Quarterly Cap (as defined below) in each of the calendar quarters following the one-year anniversary of the Closing Date, and upon a Change of Control Date the Restrictive Legend will be removed on all of the Acquired Shares, and, in each case, the Company shall issue a certificate representing the Acquired Shares without such legend to the holder of such certificate or issue to such holder by electronic delivery at the applicable balance account at The Depository Trust Company if (i) such Acquired Shares are registered for resale under the Securities Act or (ii) such Shares are eligible for sale under Rule 144 under the Securities Act. If required by the Company’s transfer agent, the Company shall cause its counsel to issue a legal opinion, at the sole cost and expense of the Purchaser, to the Company’s transfer agent to effect the removal of the Restrictive Legend within five (5) Business Days after receipt of customary representation letters in support of such opinion.

Section 5.05 Registration Rights. Following the one-year anniversary of the Closing Date, upon the Purchaser’s written request (provided, that Purchaser may not make such a request more than one time per quarter), the Company will use commercially reasonable efforts to cooperate in good faith with the Purchaser to facilitate the Purchaser’s Transfer of the Acquired

 

13

Shares in accordance with the terms of this Agreement by (i) including the Acquired Shares in any registration statement and offering made by the Company or (ii) otherwise assisting in the registration of such Acquired Shares. Notwithstanding the foregoing, the Company shall have no obligation to include the Acquired Shares in any registrations on Form S-4 or Form S-8 (or any successor forms thereto).

Section 5.06 Transfers.

(a) The Purchaser acknowledges that none of the Acquired Shares have been registered under the Securities Act.

(b) The Purchaser further agrees that:

(i) until the first anniversary of the Closing Date, the Purchaser shall not be permitted to Transfer any of the Acquired Shares other than to a Permitted Transferee; provided, that any Transfer to a Permitted Transferee shall only be permitted if the Permitted Transferee enters into, prior to such Transfer, a customary joinder in form and substance reasonably acceptable to the Company in which such Permitted Transferee agrees in writing to be bound by the provisions of this Agreement as a “Purchaser”; and

(ii) beginning on the first anniversary of the Closing Date, the Purchaser may Transfer up to 1,100,000 of the Acquired Shares, plus the Excess Shares (if any) (in each case subject to appropriate adjustment in the event of any share dividend, share split, combination or other similar recapitalization) in the aggregate in each of the calendar quarters following the one-year anniversary of the Closing Date (the “Quarterly Cap”); provided, that Transfers to Permitted Transferees shall not count towards the Quarterly Cap and may be made without restrictions hereunder to the extent they satisfy the provisions of the proviso in the preceding clause (i). For example, if Purchaser sells 500,000 Acquired Shares in the first quarter ending after the first anniversary of the Closing Date, Purchaser shall be entitled to Transfer 1,700,000 of the Acquired Shares in the second quarter ending after the first anniversary of the Closing Date and if Purchaser sells 600,000 of the Acquired Shares in the second quarter of the Closing Date, Purchaser shall be entitled to Transfer 2,200,000 of the Acquired Shares in the third quarter ending after the first anniversary of the Closing Date.

(c) Following a written request by the Company until such time as Purchaser and its Affiliates no longer beneficially own any Shares, Purchaser shall inform the Company in writing of the number of Shares beneficially owned by the Purchaser and its Affiliates.

(d) Notwithstanding anything to the contrary contained herein, all restrictions on Transfer in this Section 5.06 and the obligations under clause (c) above, shall automatically terminate on the earlier of (such earlier date, a “Change of Control Date”) (x) the date that is the second anniversary of the Closing Date and (y) the first date that (i) the Company enters into a definitive agreement with any other person or “group” of persons that, if consummated, would involve the direct or indirect acquisition of (A) all or a majority of the Company’s equity securities (or, following which transaction the persons and entities who, immediately prior to such transaction, beneficially owned securities representing a majority of the voting power of the Company do not continue to beneficially own, directly or indirectly, a majority of the voting power

 

14

of the combined entity) or (B) a majority of the Company and its subsidiaries’ assets, on a consolidated basis (based on fair market value), in each case (A) and (B), other than in connection with an internal restructuring transaction involving only the Company, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction or (ii) a tender or exchange offer (other than a self-tender offer initiated in connection with a share buyback program) is commenced by any person that, if consummated, would result in all or a majority of the Company’s equity securities being owned by persons other than the Company, and the Board (or a committee thereof) fails to recommend within ten (10) Business Days from the date of commencement of such offer that its stockholders reject such offer.

Section 5.07 Sales of Assets; Financing. For one-year period following the Closing Date, (i) to the extent the Company or any of its Subsidiaries determines to pursue a sale of assets representing five percent (5%) or more of the assets of the Company and its Subsidiaries, taken as a whole (based on book value) (excluding a transaction that, if consummated, would result in a change of control of the Company) (an “Asset Sale Transaction”), the Company will inform the Purchaser of its intent to pursue such an Asset Sale Transaction and provide the Purchaser with the opportunity to participate in the process related to such Asset Sale Transaction and (ii) to the extent the Company or any of its Subsidiaries determines to pursue a debt or equity financing transaction (including a new or replacement credit facility, note, an issuance of debt securities, preferred shares, warrants or other equity-linked securities), for an amount representing five percent (5%) or more of the equity market capitalization of the Company (a “Financing Transaction”), the Company will inform the Purchaser of its intent to pursue such a Financing Transaction and provide the Purchaser with the opportunity to participate in the process related to such Financing Transaction; provided, that in no event shall the Company be obligated to enter into an Asset Sale Transaction or Financing Transaction with the Purchaser by virtue of this Section 5.07.

Section 5.08 Trading. The Company acknowledges and agrees that from and after the filing of the Company’s quarterly report on Form 10-Q for the quarterly period ended March 31, 2020 (which shall be filed with the SEC no later than May 15, 2020), (i) except as otherwise contemplated by Section 5.02(b)(i) of this Agreement, none of Purchaser or any of its Affiliates owes the Company or any of its Affiliates any duty or is otherwise subject to any obligation to the Company or its Affiliates that would restrict or prevent Purchaser or any of its Affiliates from purchasing securities of the Company and (ii) if requested by Purchaser, the Company will inform the Purchaser as to whether the Board is or is not in a “blackout period” in accordance with the Company’s insider trading policy. For the avoidance of doubt, any such purchases are subject to the ownership limitation set forth in Section 5.02(b)(i) above.

Section 5.09 Supplemental Listing Application. The Company shall promptly (and within four (4) Business Days of the date hereof) file with the New York Stock Exchange a supplemental listing application for the Acquired Shares and use its reasonable best efforts to effect the listing of the Acquired Shares on the New York Stock Exchange.

 

15

ARTICLE VI

Termination; Survival

Section 6.01 Termination.

(a) This Agreement may be terminated by either party if the Closing does not occur on or prior to May 20, 2020; provided, that a party may not terminate this Agreement under this Section 6.01(a) if it is in breach of its obligations under this Agreement.

(b) This Agreement may be terminated and the Transactions abandoned at any time prior to the Closing by the mutual written consent of the Company and the Purchaser.

Section 6.02 Survival. The representations and warranties contained in Article III and Article IV of this Agreement shall survive for one year after the Closing. All of the covenants or other agreements of the parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance.

ARTICLE VII

Miscellaneous

Section 7.01 Modification or Amendment. This Agreement may only be amended, modified or supplemented in writing by the parties hereto, by action of the boards of directors (or comparable body) of the respective parties.

Section 7.02 Waiver. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise herein provided, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

Section 7.03 Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts (including by attachment to electronic mail in portable document format (PDF)), each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

Section 7.04 Governing Law and Venue; Waiver of Jury Trial. (a) THIS AGREEMENT AND ANY DISPUTES ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.

 

16

(b) Each of the parties (i) irrevocably submits exclusively to the jurisdiction of the Chancery Courts of the State of Delaware (the “Chancery Court”) or, if the Chancery Court declines jurisdiction, any other Delaware state court, and the federal courts of the United States of America, in each case, located in New Castle County in the State of Delaware (collectively, “Chosen Courts”) in the event any dispute arises out of this Agreement or any of the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any Proceeding (as defined in the Merger Agreement) by or before any Governmental Authority relating to this Agreement or any of the transactions contemplated hereby in any court other than the Chosen Courts, (iv) waives any objection that it may now or hereafter have to the venue of any such Proceeding in the Chosen Courts or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same and (v) consents to service being made through the notice procedures set forth in Section 7.05. Each of the Company and the Purchaser hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 7.05 shall be effective service of process for any Proceeding in connection with this Agreement or the transactions contemplated hereby.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.04.

Section 7.05 Notices. Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed given, (a) when delivered, if delivered personally to the intended recipient, (b) upon transmission, if sent by email (provided no “bounceback” or notice of non-delivery is received) and (c) one Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, addressed to a party at the following address for such party:

if to the Company

Front Yard Residential Corporation

5100 Tamarind Reef

Christiansted, United States Virgin Islands 00820

Attention: Michael Lubin

Email: frontyardresidential@altisourceamc.com

 

17

with copies to (which shall not constitute notice):

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Attention:   Michael J. Aiello

  Sachin Kohli

Email:        michael.aiello@weil.com

                   sachin.kohli@weil.com

if to Purchaser:

c/o Amherst Residential, LLC

5001 Plaza on the Lake, Suite 200

Austin, TX 78746

Attention: Joseph Gatti

Email: jgatti@amherst.com

with copies to (which shall not constitute notice):

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166

Attention:   Eduardo Gallardo

Email:        egallardo@gibsondunn.com

or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided above.

Section 7.06 Entire Agreement. This Agreement, the Termination and Settlement Agreement, the letter agreement regarding confidentiality, dated August 31, 2019, between the Company and an affiliate of Purchaser (as amended on the date hereof), the letter agreement regarding confidentiality, dated December 6, 2019, between the Company and an affiliate of Purchaser, the waiver letter agreement regarding ownership of Shares dated as of the date hereof, by and between the Company and Purchaser, and the Promissory Note (including any exhibits to the foregoing agreements) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.

Section 7.07 No Third-Party Beneficiaries. This Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder.

Section 7.08 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision negotiated in good faith by the parties hereto shall be substituted therefor in order to carry out, so

 

18

far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not, subject to clause (a) above, be affected by such invalidity or unenforceability, except as a result of such substitution, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 7.09 Interpretation. (a) The table of contents and the Article, Section and paragraph headings or captions herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” when used in this Agreement is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.

(b) The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

Section 7.10 Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the other parties hereto, and any assignment without such consent shall be null and void.

Section 7.11 Specific Performance. The parties hereto acknowledge and agree that irreparable damage would occur and that the parties would not have any adequate remedy at Law in the event that any of the obligations, undertakings, covenants or agreements of the parties to this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Company, on the one hand, and the Purchaser, on the other hand, shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by the other party, and to enforce specifically the terms and provisions of this Agreement by a decree of specific performance, in accordance with Section 7.04 of this Agreement, without the necessity of

 

19

proving actual harm or damages or posting a bond or other security therefor, this being in addition to any other remedy to which such party is entitled at law or in equity, and each party agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance or other equitable remedy is not an appropriate remedy for any reason at law or in equity.

Section 7.12 Expenses. Except as otherwise expressly provided herein or in any other Transaction Document, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs and expenses.

[Remainder of page intentionally left blank]

 

20

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.

 

 

[Signature Page to Investment Agreement]

 

[Signature Page to Investment Agreement]

Exhibit 3

Execution Version

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, THE “ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS NOTE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, MORTGAGED, HYPOTHECATED, ENCUMBERED, GIFTED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM. THIS NOTE MAY NOT BE TRANSFERRED WITHOUT THE CONSENT OF THE MAKER TO THE EXTENT REQUIRED UNDER THE TERMS OF SECTION 7 HEREOF. ANY ATTEMPT TO TRANSFER THIS SECURITY IN VIOLATION OF THESE RESTRICTIONS SHALL BE VOID.

NON-NEGOTIABLE PROMISSORY NOTE

 

$20,000,000.00		Issue Date: May 4, 2020

FOR VALUE RECEIVED, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED BY EACH OF THE UNDERSIGNED, EACH OF THE UNDERSIGNED HEREBY AGREES THAT, FRONT YARD RESIDENTIAL CORPORATION, a Maryland corporation (with its successors, the “Maker”), promises to pay to AMHERST SFRP VI REIT, LLC, a Delaware limited liability company (with its successors and registered permitted assigns, the “Noteholder”), the sum of Twenty Million U.S. Dollars (U.S.$20,000,000), or such lesser principal amount as may be outstanding on the Maturity Date (as defined below), together with interest accrued on the outstanding principal balance from time to time as provided herein, at a rate per annum as hereinafter set forth. Interest on the principal balance outstanding hereunder shall be computed on the basis of a year of 360 days, for the actual number of days elapsed, (a) from the “Issue Date” of this Non-Negotiable Promissory Note (this “Note”) set forth above (the “Issue Date”) or (b) if later, the day such principal was advanced, and paid for the actual number of days elapsed (including the first day but excluding the last day).

This Note has been executed and delivered pursuant to and in accordance with the terms and conditions of the Termination and Settlement Agreement, dated May 4, 2020 (as amended, restated, modified, waived or supplemented from time to time, the “Termination and Settlement Agreement”), by and among Maker, BAF Holdings, LLC, a Delaware limited liability company, BAF Sub, LLC, a Maryland limited liability company, and Amherst Single Family Residential Partners VI, LP, a Delaware limited partnership.

All payments of the principal of, and interest on, this Note and all other obligations evidenced hereby shall be made to the Noteholder not later than 3:00 p.m. (New York time) on the date when due, by wire transfer to the Noteholder’s account (details of which are provided by the Noteholder to the Maker) or in such other manner as the Maker and the Noteholder shall mutually agree, in lawful money of the United States of America in same day funds.

1. Accrual and Imposition of Interest. The outstanding principal amount of this Note shall bear interest (computed daily until paid) at the Benchmark Rate (as defined below) from time to time plus five percent (5.00%) per annum, which shall be due and payable in arrears on the first Business Day (as defined below) of each calendar quarter and, in the case of accrued and unpaid interest on any principal amount hereof prepaid or repaid, on the date of such prepayment or repayment. Notwithstanding the foregoing, while any Event of Default exists and for so long as it continues, upon and following written notice of the same from the Noteholder (or automatically in the case of an Event of Default described in Section 6(e) hereof), the outstanding principal amount of this Note shall bear interest at a rate that is two percent (2.00%) in excess of the rate of interest otherwise payable thereon under this Note. All interest shall be payable in arrears on the first Business Day of each calendar quarter.

As used herein:

“Benchmark Rate” means, with respect to advances of principal under this Note, for any calendar month (a) an interest rate per annum equal to the Published LIBO Rate for such calendar month or (b) if such rate referred to in clause (a) is not available as of the commencement of any calendar month for any reason (the “LIBO Termination Date”), the Replacement Benchmark Rate for such calendar month; provided that, at any time the rate applicable pursuant to clause (a) or (b) above shall be less than 0.30% per annum, such rate shall be deemed to be 0.30% per annum.

“Published LIBO Rate” means, with respect to any calendar month, the rate of interest for a one (1) month interest period appearing on the applicable Bloomberg page (or on any successor or substitute page of such service, or any successor to such service as determined by the Maker) as the London interbank offered rate for deposits in U.S. Dollars for a term comparable to such one (1) month interest period, at approximately 11:00 a.m. (London time) on the date which is two (2) Business Days prior to the commencement of such calendar month (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates).

“Replacement Benchmark Rate” means an alternate benchmark rate, together with applicable spread or other adjustments (if any) to such benchmark, reasonably determined by the Maker, in consultation with the Noteholder, and notified to the Noteholder in writing by the Maker, which shall represent an alternative benchmark rate, and related adjustments, as applicable, then prevailing for U.S. dollar-denominated credit facilities as a replacement for 1-month LIBOR, it being agreed in any event that the Maker and the Noteholder will negotiate promptly and in good faith to establish the Replacement Benchmark Rate, together with related administrative, technical and conforming changes to the provisions of this Note, by mutual agreement, upon the reasonable request of either the Maker or the Noteholder, in advance of any date when the Published LIBO Rate would be unavailable or cease to represent a prevailing benchmark interest rate under U.S. dollar-denominated credit facilities; provided, that on and from the date that the Published LIBO Rate is no longer available until such time as the Maker and Noteholder have agreed an alternate benchmark rate as set forth above, the “Replacement Benchmark Rate” shall be the sum of the Published LIBO Rate for each of the months in the six (6) month period immediately preceding the LIBO Termination Date, divided by six (6) (as determined in good faith by the Maker).

2. Advances and Payments.

(a) Advances. This Note evidences advances made by the Noteholder to the Maker from time to time in accordance with this Section 2. The aggregate outstanding principal balance of this Note at any time shall be the total of all outstanding advances less the amount of all payments of principal made on this Note from time to time by or for the account of the Maker. As of the Issue Date, after giving effect to the advance made on the Issue Date, the aggregate outstanding principal amount of this Note is Zero U.S. Dollars (U.S.$0). The Maker may pay down and reborrow amounts advanced and subsequently repaid under this Note.

(b) Advance Requests. At any time and from time to time prior to the Maturity Date, the Maker may request advances of principal under this Note from the Noteholder in an aggregate principal amount at any one time outstanding not to exceed Twenty Million U.S. Dollars (U.S.$20,000,000) (the “Commitment Amount”). Each such request for an advance of principal under this Note shall be in a minimum principal amount of Five Hundred Thousand U.S. Dollars (U.S.$500,000). Each request for an advance shall be made by delivering to the Noteholder the Request for Loan Advance in the form attached hereto as Exhibit A (a “Request for Advance” and, together with this Note, collectively, the “Note Documents”) by 11:00 a.m. (New York time) at least eleven (11) Business Days (or such shorter period as may be agreed to by the Noteholder in its sole discretion) in advance. Within eleven (11) Business Days

 

2

after receipt of the Request for Advance, the Noteholder shall advance such amounts requested to the Maker in such Request for Advance by wire transfer of immediately available funds to the account specified in the Request for Advance. The Noteholder hereby commits to make the advances to the Maker requested by the Maker in accordance with the terms of, and subject to the conditions contained in, this Section 2; provided, that the aggregate principal amount of the advances at any one time outstanding shall not exceed the Commitment Amount.

(c) Funding Conditions. Before each advance made on or following the date hereof, the following conditions must be satisfied:

(i) (A) no Event of Default (as defined below) shall have occurred and be continuing and (B) no failure by the Maker to pay accrued interest under this Note when due as described in Section 6(b) hereof which failure would, with the passage of time, become an Event of Default, shall have occurred and be continuing;

(ii) the representations and warranties of the Maker contained in Section 4 of this Note shall be true and correct in all material respects (in each case without duplication of any materiality qualifier contained therein), on and as of the date of such advance, except to the extent that any such representation or warranty relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date; and

(iii) the Maker shall have delivered a Request for Advance to the Noteholder in accordance with Section 2(b) above.

Each request for an advance shall be deemed to be a representation and warranty by the Maker on the date

of such advance as to the facts specified in Sections 2(c)(i) and (ii) above.

(d) Payments. To the extent not sooner due and payable in accordance with the terms hereof, the aggregate outstanding principal balance of this Note, plus any and all accrued and unpaid interest thereon, shall be due and payable in full on May 4, 2022 (the “Maturity Date”). If a payment under this Note otherwise would become due and payable on a day that is not a Business Day, the due date thereof shall be extended to the immediately succeeding Business Day, and interest shall be payable thereon during such extension. As used herein, “Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed and, in respect of matters related to the Published LIBO Rate, a day on which dealings are carried on in the London interbank eurodollar market. Payments by the Maker on this Note shall be made to the Noteholder by wire transfer to the account of the Noteholder specified in writing by the Noteholder to the Maker from time to time in accordance with the terms hereof.

(e) Voluntary Prepayments; Commitment Reductions. The Maker shall have the right at any time, and from time to time, in its sole discretion, to (i) prepay, without premium or penalty, the obligations outstanding under this Note in whole or in part without notice to the Noteholder and/or (ii) reduce the Commitment Amount under this Note in whole or in part upon prior written notice to the Noteholder, in each case, in a minimum principal amount of Five Hundred Thousand U.S. Dollars (U.S.$500,000), with the proceeds of any such prepayment contemplated by the foregoing clause (i) to be applied in accordance with Section 2(f) below, it being expressly understood and agreed that (A) any such prepayment contemplated by the foregoing clause (i) shall not reduce the Commitment Amount and (B) any reduction of the Commitment Amount pursuant to the foregoing clause (ii) may, at the election of the Maker, be made conditional on the consummation of any transaction specified by the Maker in its notice of such reduction.

 

3

(f) Application of Payments. All payments and prepayments made pursuant to the terms of this Note shall be applied to amounts then due and payable in the following order: first to the then unpaid interest accrued on the outstanding principal balance of this Note; and second to the then outstanding principal balance of the Note.

3. General Provisions Regarding Payments. The Maker will pay all amounts due hereunder at the place for payment specified above in lawful money of the United States of America in same day funds. The Maker hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The Maker shall be entitled to deduct and withhold from any amounts payable or otherwise deliverable pursuant to this Note such amounts as may be required to be deducted or withheld therefrom under any provision of applicable law, and to request and be provided any necessary tax forms and information in connection therewith. To the extent such amounts are so deducted or withheld and paid over to the appropriate taxing authority, such amounts shall be treated for all purposes under this Note as having been paid to the person to whom such amounts otherwise would have been paid.

4. Representations and Warranties. The Maker represents and warrants to the Noteholder as of each of the Issue Date and as of the date of each advance evidenced by this Note, that:

(a) the Maker is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has the requisite organizational power and authority to own its properties and to transact the businesses in which it is now engaged;

(b) the Maker has taken all necessary organizational action to authorize the execution, delivery and performance of this Note and is duly authorized to enter into, deliver and perform its obligations under this Note;

(c) this Note constitutes a legal, valid and binding obligation of the Maker, enforceable against the Maker in accordance with its terms;

(d) none of the making of this Note or the performance by the Maker of its obligations hereunder will (i) violate any provision of the Maker’s certificate of incorporation or bylaws, (ii) violate any provisions of any applicable statute or any applicable order, rule or regulation of any governmental authority having jurisdiction over the Maker or any of its properties or assets, (iii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, security agreement, credit agreement or other agreement or instrument to which the Maker is a party, or to which any of the Maker’s property or assets is subject and (iv) will not result in or require the creation or imposition of any lien upon or with respect to any of the assets of the Maker, except, in the case of each of the foregoing clauses (ii), (iii) and (iv), as would not reasonably be expected to have a Material Adverse Effect (as defined below); and

(e) no material consent, approval, authorization, order, registration or qualification of or with any governmental authority is required for the execution, delivery and performance by the Maker of its obligations under this Note except for those that have been obtained or made and are in full force and effect or those the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect.

As used herein, “Material Adverse Effect” shall mean a material adverse effect on (a) the business operations, properties, assets or financial condition of the Maker and is subsidiaries, taken as a whole, (b) the ability of the Maker to pay and perform its obligations under this Note when due or (c) the legality or validity or binding effect or enforceability against the Maker, of this Note.

 

4

5. Covenants. For so long as any advances shall remain outstanding or the Commitment Amount shall be greater than zero:

(a) The Maker will deliver to the Noteholder, within five (5) Business Days of the Chief Executive Officer, the Chief Financial Officer or Treasurer of the Maker (each, a “Responsible Officer”) obtaining actual knowledge that an Event of Default has occurred and is continuing, notification in reasonable detail of such Event of Default.

(b) Except as would not reasonably be expected to have a Material Adverse Effect, the Maker will:

(i) except in connection with a transaction described in Section 5(d) below, (A) preserve and maintain its legal existence, (B) preserve all of its material rights, privileges and franchises; and (C) remain in good standing under the laws of each state in which it conducts business and its jurisdiction of organization;

(ii) comply with the requirements of, and conduct its business in compliance with, all applicable laws, rules, regulations and orders of governmental authorities (including, without limitation, truth in lending, real estate settlement procedures and environmental laws); and

(iii) pay and discharge all taxes and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such tax, charge or levy the payment of which is being contested in good faith and against which adequate reserves are being maintained (as determined in good faith by the Maker).

(c) The Maker shall use the proceeds of all advances under this Note for general corporate purposes; provided, that no portion of the proceeds of any advance shall be used by the Maker in any manner that is in violation in any material respect of any law applicable to the Maker.

(d) The Maker shall not consummate any merger, consolidation or amalgamation to which it is a party or liquidate, wind up or dissolve itself (or consent to any liquidation, winding up or dissolution of itself), or dispose or permit the disposition of all or substantially all of the assets of the Maker (each of the foregoing, a “Fundamental Change Transaction”) unless prior to or substantially concurrently with the consummation of such Fundamental Change Transaction either (i) the surviving, resulting or successor entity of such merger consolidation or amalgamation, recipient of the assets distributed in such liquidation, winding up or dissolution, or purchaser of such assets, as the case may be, in such Fundamental Change Transaction shall expressly assume the obligations of the Maker hereunder or (ii) the Commitment Amount is reduced to zero and all outstanding principal and all accrued and unpaid interest under this Note are repaid in full.

6. Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:

 

(a)

the Maker shall fail to make payment on the Maturity Date of the outstanding principal amount of this Note;

 

5

(b)

the Maker shall fail to make payment when due of any interest accrued on any obligations outstanding under this Note and such failure continues for a period of ten (10) Business Days following the failure of the Maker to make such payment;

 

(c)

the Maker shall fail to observe or perform, as required by the relevant provision, any covenant contained in Section 5 of this Note and (other than in the case of the covenant contained in Section 5(d)) such failure to observe or perform shall continue unremedied for a period of thirty (30) days after the earlier of a Responsible Officer of the Maker obtaining actual knowledge of such failure or delivery of written notice of such failure by the Noteholder to the Maker;

 

(d)

any representation or warranty made or expressly deemed made by the Maker in this Note being untrue in any material respect as of the date made or expressly deemed made;

 

(e)

(i) the Maker shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against the Maker seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up or reorganization of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or an order for relief shall be entered by a court of competent jurisdiction in respect of the Maker in any such proceeding, or an order for the appointment of a receiver, trustee, custodian or other official having similar powers over the Maker shall be entered by any such court in respect of the Maker, or any substantial part of its property, in any such proceeding, which, in each case under this clause (ii) (other than in the case of a proceeding instituted by the Maker with respect to itself) shall remain undismissed, unstayed, unvacated and unbonded for a period of one hundred and twenty (120) consecutive days; or

 

(f)

default shall occur under the documentation for any indebtedness for borrowed money of the Maker or any of its subsidiaries with an aggregate outstanding principal amount in excess of $30,000,000 if such default (i) constitutes the failure to pay the outstanding principal amount of such indebtedness at the scheduled final maturity date thereof, determined after giving effect to any applicable periods of grace or (ii) has resulted in the acceleration of the entire outstanding principal amount of such indebtedness prior to its scheduled final maturity date, and in the case of each of (i) and (ii) such indebtedness is not otherwise repaid or refinanced;

then, in the case of any of the Events of Default specified above, the Noteholder may, by written notice to the Maker, terminate the Commitment Amount and declare the entire outstanding principal amount of this Note and all accrued and unpaid interest thereon forthwith due and payable, whereupon the Commitment Amount shall be reduced to zero and such outstanding principal amount and interest shall become immediately due and payable, without demand, protest, presentment, notice of dishonor or any other notice or demand whatsoever, all of which are hereby waived by the Maker, and exercise all rights and remedies available to it under applicable law; provided that in the case of an Event of Default specified in clause (e) above, the Commitment Amount shall immediately and automatically be terminated and reduced to zero and the entire principal amount of this Note and all accrued and unpaid interest thereon shall become immediately and automatically due and payable without any notice to the Maker.

 

6

7. Assignments. This Note shall be binding upon and inure to the benefit of each of the Maker and the Noteholder and their respective legal successors and registered permitted assigns; provided, this Note shall not be assigned by operation of law or otherwise without the prior written consent of each of the other parties hereto, and any assignment without such consent shall be null and void. Notwithstanding the foregoing, the Noteholder shall not be restricted in its right to assign all or any portion of its rights and obligations in respect of this Note (a) to any entity that is not a competitor or a known or identified affiliate of a competitor of the Maker or any of its subsidiaries while any Event of Default referred to in Section 5(a) or 5(e) above has occurred and is continuing or (b) to any subsidiary of the Noteholder if the Maker fails to remain a “publicly offered REIT” within the meaning of Section 856(c)(5)(L) of the Internal Revenue Code of 1986, as amended and the Noteholder reasonably determines that its continued ownership of an interest in this Note is likely to result in adverse tax consequences for the Noteholder or its direct or indirect owners; provided, that with respect to clause (b) above, (i) any such assignment shall not relieve the Noteholder of its obligation to fund advances to the Maker in accordance with Section 2 hereof in the event that such assignee subsidiary fails to fund the same in accordance with Section 2 hereof and (ii) the Noteholder shall be responsible for any breach by any such assignee subsidiary of the obligations hereunder that are applicable to the Noteholder. The initial Noteholder, acting solely for this purpose as an agent of the Maker, shall maintain at one of its offices a register for the recordation of the names and addresses of the Noteholders and the principal amounts (and stated interest) of the advances evidenced by this Note owing to each Noteholder pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Maker and the Noteholders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Noteholder hereunder for all purposes of this Note unless the assignment to such person of an interest herein was not permitted by the terms of this Note. The Register shall be available for inspection by the Maker and any Noteholder, at any reasonable time and from time to time upon reasonable prior notice.

8. Savings Clause. Notwithstanding anything to the contrary contained herein, in no event will the Maker be required to pay a rate of interest in excess of the maximum interest rate permitted under law applicable to the Maker. In the event that the Noteholder ever receives from the Maker, as interest, any amount in excess of the maximum rate permitted by law applicable to the Maker, all amounts so received shall be deemed partial prepayments of principal by the Maker and applied as of the date received or, if the principal amount of this Note has been paid, refunded to the Maker.

9. Severability. The provisions of this Note shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Note, or the application thereof to any person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision negotiated in good faith by the parties hereto shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Note and the application of such provision to other persons or entities or circumstances shall not, subject to clause (a) above, be affected by such invalidity or unenforceability, except as a result of such substitution, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

10. Notices. Notices, requests, instructions or other documents to be given under this Note shall be in writing and shall be deemed given, (a) when delivered, if delivered personally to the intended recipient, (b) upon transmission, if sent by email (provided no “bounceback” or notice of non-delivery is received) and (c) one (1) Business Day later, if sent by overnight delivery via a national courier service (providing proof of delivery), and in each case, addressed to a party at the address set forth on each party’s signature page hereto or to such other persons or addresses as may be designated in writing to the other party by the party to receive such notice as provided on the respective signature pages hereto.

 

7

11. No Guarantees or Third Party Liability. No recourse shall be had for the payment of the principal or interest of this Note, or for any premium or other claim based hereon, or otherwise in respect hereof, against any incorporator, stockholder, employee, agent, officer or director, past, present or future of Maker, or by the enforcement of any assessment or penalty, or otherwise, all such liability being expressly waived and released by Noteholder’s acceptance of this Note.

12. Counterparts; Effectiveness. This Note may be executed in any number of counterparts (including by attachment to electronic mail in portable document format (PDF)), each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

13. Modification or Amendment. This Note may only be amended, modified or supplemented in writing by the parties hereto, by action of the boards of directors (or equivalent managers) of the respective parties.

14. Waiver. Any provision of this Note may be waived if, and only if, such waiver is in writing and signed by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise herein provided, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

15. Entire Agreement. This Note (including any exhibits hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.

16. Expenses. Except as otherwise expressly provided herein or in the Termination and Settlement Agreement, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Note shall be paid by the party incurring such costs and expenses.

17. No Third-Party Beneficiaries. This Note is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder.

18. GOVERNING LAW; JURISDICTION. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS NOTE. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

19. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS NOTE OR THE SUBJECT MATTER THEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THIS NOTE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.

[signature pages follow]

 

8

IN WITNESS WHEREOF, the Maker and the Noteholder have caused this Note to be duly executed as of the day and year first above written.

 

 

[Signature Page to Non-Negotiable Promissory Note]

 

[Signature Page to Non-Negotiable Promissory Note]

EXHIBIT A

REQUEST FOR ADVANCE

 

				Date: ________________________
				Draw No.: ____________________

Re: Non-Negotiable Promissory Note, dated May 4, 2020 (the “Note”), made by FRONT YARD RESIDENTIAL CORPORATION, a Maryland corporation (with its successors, the “Maker”), in favor of AMHERST SFRP VI REIT, LLC, a Delaware limited liability company (the “Noteholder”).

 

1.

Pursuant to the Note, the Maker hereby requests from the Noteholder an advance (the “Advance”) in the amount of [•] U.S. Dollars (U.S.$[________________]) on [date].

 

2.

The Maker hereby requests that the Advance be made by wire transfer of immediately available funds at the following account: [•];

 

3.

The principal amount outstanding under the Note, after giving effect to the Advance is [______________] U.S. Dollars (U.S.$[______________]); and

 

4.

The Maker hereby certifies that it has duly caused this Request for Loan Advance to be signed on its behalf by the undersigned, thereto duly authorized.

[signature page follows]

IN WITNESS WHEREOF, the Maker has executed and delivered this Request for Advance to the Noteholder as of this ______ day of ___________, 20__.

 

 

[Signature Page to Request for Advance]

EXHIBIT 4

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained herein or therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate.

Date: May 13, 2020