Amendment No. 3, dated as of January 13, 2021, to Equity Distribution Agreement, dated May 8, 2019, among American Finance Trust, Inc., American Finance Operating Partnership, L.P., and BMO Capital Markets Corp., BBVA Securities Inc., B. Riley Securities, Inc., Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc., Truist Securities, Inc. and D.A. Davidson & Co

EX-1.2 3 tm212898d1_ex1-2.htm EXHIBIT 1.2

Exhibit 1.2

AMERICAN FINANCE TRUST, INC.

AMENDMENT NO. 3 TO EQUITY DISTRIBUTION AGREEMENT

January 13, 2021

BMO Capital Markets Corp.

3 Times Square

New York, New York 10036

BBVA Securities Inc.

1345 Avenue of the Americas, 44th Floor

New York, New York 10105

B. Riley Securities, Inc.

299 Park Avenue, 21st Floor

New York, New York 10171

Citizens Capital Markets, Inc.
600 Washington Blvd., 11th Floor
Stamford, Connecticut 06901

KeyBanc Capital Markets Inc.
127 Public Square, 11th Floor
Cleveland, Ohio 44114

Ladenburg Thalmann & Co. Inc.

277 Park Avenue, 26th Floor

New York, New York 10172

Truist Securities, Inc.
3333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326

D.A. Davidson & Co.

8 Third Street North

Great Falls, MT 59401

Ladies and Gentlemen:

Reference is made to the Equity Distribution Agreement, dated as of May 8, 2019, as amended by Amendment No. 1 to Equity Distribution Agreement, effective as of June 25, 2019, and by Amendment No. 2 to Equity Distribution Agreement, effective as of October 4, 2019 (the “Agreement”), by and among American Finance Trust, Inc., a Maryland corporation (the “Company”), and American Finance Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), on the one hand, and BMO Capital Markets Corp., BBVA Securities Inc., B. Riley Securities, Inc. (f/k/a B. Riley FBR, Inc.), Citizens Capital Markets, Inc., KeyBanc Capital Markets Inc., Ladenburg Thalmann & Co. Inc., Truist Securities, Inc. (f/k/a SunTrust Robinson Humphrey, Inc.) and D.A. Davidson & Co. (together with the Company and the Operating Partnership, the “Parties”) regarding the issuance and sale of the Company’s 7.50% Series A Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share, pursuant to the terms thereof. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.

In connection with the foregoing, the Parties wish to amend the Agreement through this Amendment No. 3 to the Equity Distribution Agreement (this “Amendment”) to modify the definition of certain defined terms set forth in the Agreement with effect on and after the date hereof (the “Effective Date”).

SECTION 1. Amendment to the Agreement. The Parties hereby agree, from and after the Effective Date, that:

The definition of the term “Maximum Amount” is hereby amended to read as follows: “an aggregate offering price of up to $200,000,000 (the “Maximum Amount”).”

The second sentence of Section 3(q) is hereby amended such that (a) the word “or” that precedes clause (v) is deleted and replaced with a comma, and (b) the following new clause (vi) is inserted at the end thereof: “or (vi) offer, issue and sell shares of 7.375% Series C Cumulative Redeemable Perpetual Preferred Stock, $0.01 par value per share (the “Series C Preferred Stock”), to the public, through sales agents, pursuant to the Company’s “at the market” equity offering program for Series C Preferred Stock.”

SECTION 2. No Other Amendments; References to Agreements. Except as set forth in this Amendment, all other terms and provisions of the Agreement shall continue in full force and effect. All references to the Agreement in the Agreement or in any other document executed or delivered in connection therewith shall, from the date hereof, be deemed a reference to the Agreement as amended by this Amendment.

SECTION 3. Governing Law. THIS AMENDMENT, AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING UNDER OR RELATED TO THIS AMENDMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. Each party hereto hereby irrevocably submits for purposes of any action arising from this Amendment brought by the other party hereto to the jurisdiction of the courts of New York State located in the Borough of Manhattan and the U.S. District Court for the Southern District of New York.

SECTION 4. Counterparts. This Amendment may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.

SECTION 5. Survival of Provisions Upon Invalidity of Any Single Provision. In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 6. Waiver of Jury Trial. Each of the Company, the Operating Partnership and the Agents hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Amendment or the transactions contemplated hereby or thereby.

SECTION 7. Titles and Subtitles. The titles of the sections and subsections of this Amendment are for convenience and reference only and are not to be considered in construing this Amendment.

SECTION 8. Successors and Assigns. This Amendment shall be binding upon each Agent and the Company and the Operating Partnership and their successors and assigns and any successor or assign of any substantial portion of the Company’s and the Operating Partnership’s and each Agent’s respective business or assets.

[Signature Page Follows]

	Very truly yours,

	AMERICAN FINANCE TRUST, INC.

	By:	/s/ Edward M. Weil, Jr.
		Name: Edward M. Weil, Jr.
		Title: Chief Executive Officer and President

	AMERICAN FINANCE OPERATING PARTNERSHIP, L.P.


	By:	/s/ Katie P. Kurtz
		Name: Katie P. Kurtz
		Title: Chief Financial Officer, Treasurer and Secretary

[Signature Page to Amendment No. 3 to Equity Distribution Agreement]

Confirmed as of the date first above mentioned:

BMO CAPITAL MARKETS CORP.

By: /s/ Brian Riley

Name: Brian Riley

Title: Managing Director, Global Markets

BBVA SECURITIES INC.

By: /s/ Ryan Donovan

Name: Ryan Donovan

Title: Managing Director

B. RILEY SECURITIES, INC.

By: /s/ Patrice McNicoll

Name: Patrice McNicoll

Title: SMD & Co-Head of Investment Banking

CITIZENS CAPITAL MARKETS, INC.

By: /s/ Mark Sanko

Name: Mark Sanko

Title: Managing Director

D.A. DAVIDSON & CO.

By: /s/ Marge A. Sitzmann

Name: Marge A. Sitzmann

Title: Managing Director

KEYBANC CAPITAL MARKETS INC.

By: /s/ Paul Hodermarsky

Name: Paul Hodermarsky

Title: Managing Director, Equity Capital Markets

LADENBURG THALMANN & CO., INC.

By: /s/ Steve Kaplan

Name: Steve Kaplan

Title: Head of Capital Markets

TRUIST SECURITIES, INC.

By: /s/ Keith Carpenter

Name: Keith Carpenter

Title: Director

[Signature Page to Amendment No. 3 to Equity Distribution Agreement]