Colony Starwood Homes 20,076,891 Common Shares of Beneficial Interest, $0.01 Par Value per Share UNDERWRITING Agreement

EX-1.1 2 sfr-ex11_6.htm EX-1.1 sfr-ex11_6.htm

EXHIBIT 1.1

 

Execution Version

Colony Starwood Homes

20,076,891

Common Shares of Beneficial Interest, $0.01 Par Value per Share

UNDERWRITING Agreement

New York, New York

March 1, 2017

To the Representatives of the several Underwriters named in Schedule I hereto

Ladies and Gentlemen:

Colony Starwood Homes, a Maryland real estate investment trust (including its predecessors, as the context requires, the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, 9,600,000 (the “Primary Underwritten Securities”) of its common shares of beneficial interest, $0.01 par value per share (the “Common Shares”), and, at the election of the Underwriters, up to an additional 1,505,465 Common Shares (the “Primary Option Securities” and, together with the Primary Underwritten Securities, the “Primary Securities”).  The selling shareholders named in Schedule II hereto (the “Selling Shareholders”), severally and not jointly, propose to sell to the several Underwriters an aggregate of 10,476,891 Common Shares (the “Secondary Underwritten Securities”), and, other than Starwood Capital Group Global, L.P., at the election of the Underwriters, up to an additional 1,506,068 Common Shares (the “Secondary Option Securities” and, together with the Secondary Underwritten Securities, the “Secondary Securities”).  The Primary Securities and the Secondary Securities are collectively herein referred to as the “Securities”; the Primary Underwritten Securities and the Secondary Underwritten Securities are collectively herein referred to as the “Underwritten Securities”; and the Primary Option Securities and the Secondary Option Securities are collectively herein referred to as the “Option Securities.”  Certain terms used herein are defined in Section 13(k) hereof.

 

The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:

 

1.Registration Statement, Preliminary Prospectus, Prospectus and Free Writing Prospectuses.  The Company has filed with the Commission a registration statement, including a prospectus on Form S-3 (File No. 333-214062), relating to securities (the “Shelf Securities”), including the Securities, to be offered and sold from time to time.  The registration statement as amended as of its most recent effective date (within the meaning of Rule 430B(f)(2) under the Act) (an “Effective Date”), including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Act is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf Securities dated October 11, 2016 in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet

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requests of purchasers pursuant to Rule 173 under the Act) is hereinafter referred to as the “Basic Prospectus.”  The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities, in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of  the Prospectus filed with the Commission pursuant to Rule 424(b) under the Act.  

For purposes of this underwriting agreement (this “Agreement”), “free writing prospectus” has the meaning set forth in Rule 405 under the Act.  “Time of Sale Information” means the documents and other information set forth in Annex A hereto.  Each reference herein to the Registration Statement, any preliminary prospectus, the Time of Sale Information or the Prospectus shall be deemed to refer to and include any document incorporated by reference therein as of the date hereof, and any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement, any preliminary prospectus, the Time of Sale Information or the Prospectus shall be deemed to refer to and include any documents subsequently filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act”), that are incorporated by reference therein.

 

2.Representations and Warranties.

(a)Representations and Warranties of the Company and the Operating Partnership.  Each of the Company and Colony Starwood Homes Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), jointly and severally, represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 2(a).

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Any certificate signed by any officer of the Company or the Operating Partnership and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, as to matters covered thereby, to each Underwriter.

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(b)Representations and Warranties of the Selling Shareholders.  Each Selling Shareholder, severally and not jointly, represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 2(b).

(i)This Agreement. This has been duly authorized, executed and delivered by such Selling Shareholder.

(ii)Absence of Defaults and Conflicts.  The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement does not and will not: (A) contravene any provision of law, statute, rule or regulation applicable to such Selling Shareholder; (B) contravene the certificate of incorporation or by-laws (or other equivalent governing instruments, as applicable) of such Selling Shareholder; (C) result in breach of, or constitute a default under, any agreement or other instrument binding upon such Selling Shareholder; or (D) contravene any judgment, order, writ or decree applicable to such Selling Shareholder of any governmental body, agency, instrumentality or court having jurisdiction over such Selling Shareholder, except, with respect to clauses (C) and (D) of this sentence only, where any such contravention, breach or default would not, individually or in the aggregate, materially adversely affect such Selling Shareholder’s ability to consummate the transactions contemplated by this Agreement.

(iv)Valid Title and Passage Thereof.  Such Selling Shareholder has, and, on the Closing Date and each Additional Closing Date, if any, will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501(b) of the New York Uniform Commercial Code (the “UCC”) in respect of, the Secondary Securities to be sold by such Selling Shareholder pursuant hereto free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to sell, transfer and deliver such Secondary Securities or a security entitlement in respect of such Secondary Securities.  

(v)Delivery of Secondary Securities.  Upon (A) payment for such Secondary Securities, delivery of such Secondary Securities, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), (B) delivery of such

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Secondary Securities in the name of Cede or such other nominee (unless delivery of such Secondary Securities is unnecessary because such Secondary Securities are already registered in the name of Cede or such nominee) and (C) the crediting of such Secondary Securities on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Secondary Securities), (I) DTC will be a “protected purchaser” of such Secondary Securities within the meaning of Section 8-303 of the UCC; (II) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Secondary Securities; and (III) no action based on any “adverse claim,” within the meaning of Section 8-102(a) of the UCC, to such Secondary Securities may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery (if necessary) and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its declaration of trust, bylaws and applicable law; (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC; and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to Section 8-501(b)(1) of the UCC.

(vi)Clean Hands.  Such Selling Shareholder is not prompted by any information concerning the Company or its Subsidiaries that is not set forth in the Time of Sale Information to sell the Secondary Securities to be sold by such Selling Shareholder pursuant hereto.

(vii)Certain Information.  The Selling Shareholder Information of such Selling Shareholder included in the Registration Statement, the Time of Sale Information or the Prospectus is true and correct in all material respects.  “Selling Shareholder Information” means, with respect to any Selling Shareholder, the name of such Selling Shareholder and the number of Shares beneficially owned by such Selling Shareholder appearing in the table under the caption “Selling Shareholders” in the Registration Statement, the Time of Sale Information and the Prospectus and any footnote to such table specifically relating to such Selling Shareholder.

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Any certificate signed by or on behalf of any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.

3.Purchase and Resale of the Securities by the Underwriters.

(a)Subject to the terms and conditions set forth in this Agreement, (i) each of the Company and each Selling Shareholder agrees, severally and not jointly, to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company or such Selling Shareholder, as applicable, at a purchase price per share of $31.525, the number of Underwritten Securities (to be adjusted by the Representatives so as to eliminate fractional shares) determined by multiplying the aggregate number of Underwritten Securities to be sold by the Company or such Selling Shareholder, as applicable, as set forth opposite such party’s name in Schedule II hereto, by a fraction, the numerator of which is the aggregate number of Underwritten Securities to be purchased by such Underwriter, as set forth opposite the name of such Underwriter in Schedule I hereto (as may be adjusted pursuant to Section 10 hereof), and the denominator of which is the aggregate number of Underwritten Securities to be purchased by all of the Underwriters from the Company and the Selling Shareholders hereunder; and (ii) in the event and to the extent that the Underwriters exercise their option to purchase Option Securities as provided below, each of Company and each Selling Shareholder agrees, severally and not jointly, to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company or such Selling Shareholder, as applicable, at the purchase price per share set forth in clause (i) of this Section 3(a) (subject to the proviso of the first sentence of the paragraph (b) below), a number of Option Securities (to be adjusted by the Representatives so as to eliminate fractional shares) equal to (x) the number of Option Securities as to which such election has been exercised, multiplied by (y) a fraction, the numerator of which is the maximum number of Option Securities subject to purchase from the Company or such Selling Shareholder, as applicable, as set forth opposite such party’s name in Schedule II hereto, and the denominator of which is the maximum number of Option Securities that

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all of the Underwriters are entitled to purchase from the Company and the Selling Shareholders hereunder, multiplied by (z) a fraction, the numerator of which is the aggregate number of Underwritten Securities to be purchased by such Underwriter, as set forth opposite the name of such Underwriter in Schedule I hereto (as may be adjusted pursuant to Section 10 hereof), and the denominator of which is the aggregate number of Underwritten Securities to be purchased by all of the Underwriters from the Company and the Selling Shareholders hereunder.

(b)Each of the Company and each Selling Shareholder, as and to the extent set forth in Schedule II hereto, severally and not jointly, grants to the Underwriters the right to purchase, at their election, up to that number of Option Securities set forth opposite the name of such party in Schedule II hereto, at the purchase price per share set forth in paragraph (a) above; provided, however, that the purchase price per share for the Option Securities will be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Securities but not payable on the Option Securities.  The Underwriters may exercise the option to purchase the Option Securities at any time in whole, or from time to time in part, on or before the 30th day following the date of this Agreement, by written notice from the Representatives to the Company and each Selling Shareholder.  Such notice shall set forth the aggregate amount of Option Securities as to which the option is being exercised and the date and time when such Option Securities are to be delivered and paid for, which date and time may be the same date and time as the Closing Date but shall not be earlier than the Closing Date nor later than the tenth full business day after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 hereof).  Any such notice shall be given at least two business days prior to the date and time of delivery specified therein.

(c)The Company and each Selling Shareholder acknowledge and agree that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.

(d)Payment for the Primary Securities and the Secondary Securities shall be made by wire transfer in immediately available funds to the accounts specified by the Company and each Selling Shareholder, respectively, to the Representatives, at the offices of Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, California 90071 at 10:00 A.M. New York City time on March 7, 2017, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives, the Company and each Selling Shareholder may agree upon in writing or, in the case of any Option Securities, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Securities.  The time and date of such payment for the Underwritten Securities is referred to herein as the “Closing Date” and each time and date for such payment for any Option Securities, if other than the Closing Date, is herein referred to as an “Additional Closing Date.”

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Payment for the Securities to be purchased on the Closing Date or any Additional Closing Date, if any, as the case may be, shall be made against delivery, through the facilities of DTC for the respective accounts of the several Underwriters, of the Securities to be purchased on such date, with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company or the applicable Selling Shareholder, as applicable.  The certificates, if any, representing such Securities will be made available for inspection by the Representatives at the office of Latham & Watkins LLP set forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or such Additional Closing Date, as the case may be.

 

4.Further Agreements of the Company.  The Company agrees with the several Underwriters that:

(a)Delivery of Copies.  The Company will deliver to the Underwriters as many copies of the Time of Sale Information, any free writing prospectus and the Prospectus (including all amendments and supplements thereto) as the Representatives may reasonably request.

(b)Prospectus, Amendments or Supplements.  Before finalizing the Prospectus or making, filing or distributing any amendment or supplement to any of the Registration Statement, the Time of Sale Information, any free writing prospectus or the Prospectus, including, prior to the completion of the initial offering of the Securities, the filing with the Commission of any document that will be incorporated by reference in any of the foregoing, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the same for review, and will not distribute, or file with the Commission, any such document to which the Representatives reasonably object.

(c)Additional Free Writing Prospectus.  Before making, preparing, using, authorizing, approving or referring to any proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such free writing prospectus for review and will not make, prepare, use, authorize, approve or refer to any free writing prospectus to which the Representatives reasonably object.

(d)Notice to the Representatives.  The Company will advise the Representatives promptly, and confirm such advice in writing: (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any preliminary prospectus, any of the Time of Sale Information, any free writing prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence or development of any event at any time prior to the completion of the initial offering of the Securities as a result of which (x) any preliminary prospectus, any of the Time of Sale Information, any free writing prospectus or the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such preliminary prospectus, Time of Sale Information, free writing prospectus or the Prospectus is delivered to a purchaser, not misleading; or (y) the Registration Statement as then amended or

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supplemented, would contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (iii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (iv) the issuance of any stop order suspending the effectiveness of the Registration Statement, or the commencement, or the receipt by the Company of notice of any threatened commencement, of any proceedings for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any preliminary prospectus, any of the Time of Sale Information, any free writing prospectus or the Prospectus or suspending any such qualification of the Securities or suspending the effectiveness of the Registration Statement and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.

(e)Ongoing Compliance of the Time of Sale Information and the Prospectus.  (i) If at any time prior to the completion of the initial offering of the Securities: (A) any event or development shall occur or condition shall exist as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading; or (B) it is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Underwriters such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented (or including such document to be incorporated by reference therein) will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or so that the Prospectus will comply with law; and (ii) if at any time prior to the Closing Date: (A) any event or development shall occur or condition shall exist as a result of which any of the Time of Sale Information, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (B) it is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Underwriters such amendments or supplements to any of the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or so that the Time of Same Information will comply with law.

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(f)Blue Sky Compliance.  The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for the offering and resale of the Securities.

(g)Clear Market.  The Company will not, without the prior written consent of J.P. Morgan Securities LLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction, including any swap transaction, which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to: (i) any Common Shares; or (ii) any securities convertible into, or exercisable or exchangeable for, Common Shares; or publicly announce an intention to effect any such transaction, until 60 days after date of the Prospectus; provided, however, that: (i) the Company may issue and sell Common Shares or securities convertible into, or exercisable for, Common Shares pursuant to any employee share option plan, equity incentive plan, share ownership plan or dividend reinvestment plan of the Company in effect as of the date hereof; (ii) the Company may issue Common Shares issuable upon the conversion of securities or the exercise of any option or warrant outstanding as of the date hereof; (iii) the Company may file a registration statement with the Commission with regard to securities issued or to be issued under any equity incentive plan; (iv) the Company may file a registration statement on Form S-8 (or any successor form) with respect to an employee share purchase plan; (v) the Company may establish an “at-the-market” program for the issuance and sale of Common Shares, provided that no Common Shares will be issued or sold pursuant to such a program until 60 days after date of the Prospectus; (vi) the Company may issue and sell the Primary Securities pursuant to this Agreement; (vii) the Company may establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Shares, provided that (A) such plan does not provide for the transfer of Common Shares until 60 days after date of the Prospectus and (B) to the extent a public announcement or filing under the Exchange Act, if any, is required or voluntarily made regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Shares may be made under such plan until 60 days after date of the Prospectus; and (viii) the Company may issue Common Shares or securities convertible into, or exercisable or exchangeable for, Common Shares as payment of any part of the purchase price for any acquisition of a business or assets by the Company, provided that the aggregate number of all such Common Shares or securities issued pursuant to any such acquisitions within the 60-day period following the date of the Prospectus does not exceed 15% of the number of Common Shares outstanding on the date of the Prospectus, provided further that the recipient of any such Common Shares or securities shall agree not to sell or otherwise dispose of any such Common Shares or securities for the then remaining term of the 60 day restricted period.

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(h)Payment of Expenses.  Each of the Company and the Operating Partnership, jointly and severally, agrees to pay the costs and expenses relating to the following matters: (i) the printing (or reproduction), filing with the Commission (if applicable), and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of any preliminary prospectus, any other Time of Sale Information, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (ii) the preparation and filing with the Commission of, and the payment of any applicable filing fees in connection with, the Registration Statement or any amendment or supplement thereto; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the listing of the Securities on the New York Stock Exchange (the “NYSE”); (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification, which shall not exceed $10,000); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters, which shall not exceed $10,000, in connection with, any required review by FINRA of the terms of the sale of the Securities; (x) the fees of any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the Exchange Act); and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.

(i)REIT Status.  The Company will use its best efforts to operate in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code until such time as the Company’s board of trustees determines that operating in such manner is not in the best interests of the Company and its shareholders.

(j)Use of Proceeds.  The Company and the Operating Partnership will apply the net proceeds from the sale of the Securities as described in the Time of Sale Information and the Prospectus under the heading “Use of Proceeds.”

(k)NYSE. The Company agrees to use its reasonable best efforts to list (subject, in the case of the Primary Securities, to notice of issuance) the Securities on the NYSE.

(l)DTC.  The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.

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(m)Free Writing Prospectuses.  The Company will file with the Commission each free writing prospectus, if any, relating to the offer and sale of the Securities in compliance with Rule 433 under the Act.  The Company will not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of any Underwriter that such Underwriter otherwise would not have been required to file thereunder.

(n)Earnings Statement.  The Company will make generally available to the Company’s securityholders and to the Representatives as soon as practicable an earnings statement covering a period of at least 12 months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement that will satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder.

(o)New Registration Statement.  If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, then the Company will, prior to the third anniversary, file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement will be deemed to include any such new registration statement that has become effective under the Act.

(p)Pricing Term Sheet.  If requested by the Representatives, to prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Act following the date the final terms have been established for the offering of the Securities.

(q)Payment of Registration Fee.  The Company will pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act (without regard to the proviso to Rule 456(b)(1)(i)) and otherwise in accordance with Rules 456(b) and 457(r) under the Act.

(r)Filing of Prospectus.  The Company will file the Prospectus in accordance with Rule 424 under the Act.

5.Further Agreements of the Selling Shareholders.  Each Selling Shareholder, severally and not jointly, agrees with the several Underwriters that:

(a)IRS Forms.  Such Selling Shareholder will deliver, or cause to be delivered, to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.

(b)Payment of Expenses.  Such Selling Shareholder will pay the costs and expenses incident to the performance of such Selling Shareholder obligations under this Agreement; provided, however, that nothing in this Section 5(b) shall affect, as between

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such Selling Shareholder and the Company, any agreement pursuant to which the Company shall have agreed to pay, cause to be paid or reimburse such Selling Shareholder for any such costs or expenses.

6.Certain Agreements of the Underwriters.  Each Underwriter hereby represents and agrees that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the solicitation of an offer to buy the Securities other than: (a) the preliminary prospectus dated February 28, 2017 and the Prospectus; (b) a written communication that contains no “issuer information” (as defined in Rule 433(h)(2) under the Act) that was not included (including through incorporation by reference) in any preliminary prospectus or the Prospectus; (c) any written communication identified in Annex A; (d) any written communication prepared by such Underwriter and approved by the Company in advance in writing; or (e) any written communication relating to or that contains the terms of the Securities and/or other information that was included (including through incorporation by reference) in any preliminary prospectus or the Prospectus.

7.Conditions to the Obligations of the Underwriters.  The obligations of the Underwriters to purchase the Underwritten Securities and any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company, Operating Partnership and each Selling Shareholder contained herein as of the date hereof, the Closing Date and any Additional Closing Date, as the case may be, to the accuracy of the statements of the Company, the Operating Partnership and each Selling Shareholder made in any certificates pursuant to the provisions hereof, to the performance by each of the Company, the Operating Partnership and each Selling Shareholder of such party’s obligations under this Agreement and to the following additional conditions:

(a)At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinion, dated as of Closing Date or such Additional Closing Date, as the case may be, of Sidley Austin LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Annex B-1 and Annex B-2 hereto and to such further effect as counsel to the Underwriters may reasonably request.

In rendering each such opinion, as applicable, such counsel may rely: (i) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials reasonably satisfactory to counsel for the Underwriters.

(b)At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinion, dated as of Closing Date or such Additional Closing Date, as the case may be, of Ryan A. Berry, Executive Vice President, General Counsel and Secretary of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or

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reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Annex C hereto and to such further effect as counsel to the Underwriters may reasonably request.

In rendering each such opinion, as applicable, such counsel may rely as to matters of fact, to the extent she deems proper, on certificates of responsible officers of the Company and public officials reasonably satisfactory to counsel for the Underwriters.

(c)At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinion, dated as of the Closing Date or such Additional Closing Date, as the case may be, of Venable LLP, Maryland counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Annex D hereto and to such further effect as counsel to the Underwriters may reasonably request.

In rendering each such opinion, as applicable, such counsel may rely: (i) as to matters involving the application of laws of any jurisdiction other than the State of Maryland, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.

(d)At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinions, dated as of the Closing Date or such Additional Closing Date, as the case may be, of (i) Hogan Lovells US LLP, with respect to the Selling Shareholders other than ColCo Strategic Partners, L.P. and Starwood Capital Group Global, L.P., in the form set forth in Annex E-1; (ii) Rinaldi, Finkelstein & Franklin, LLC, special counsel of Starwood Capital Group Global, L.P., in the form set forth in Annex E-2; (iii) Maples and Calder, with respect to ColCo Strategic Partners, L.P., in the form set forth in Annex E-3; and (iv) Sidley Austin LLP with respect to the Selling Shareholders in the form set forth in Annex E-4, together with signed or reproduced copies of such opinions for each of the other Underwriters.

In rendering each such opinion, as applicable, such counsels may rely (i) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.

(e)The Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Time of

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Sale Information and the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(f)The Company shall have furnished to the Representatives a certificate of the Chief Executive Officer, the Chief Financial Officer or the Chief Accounting Officer of the Company and the Operating Partnership and one additional senior executive officer of the Company and the Operating Partnership who is satisfactory to the Representatives, dated the Closing Date or such Additional Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Time of Sale Information and the Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:

(i)the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date or such Additional Closing Date, as the case may be, with the same effect as if made on the Closing Date or such Additional Closing Date, as the case may be, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or such Additional Closing Date, as the case may be;

(g)Each Selling Shareholder shall have furnished to the Representatives a certificate, signed on behalf of such Selling Shareholder, dated the Closing Date or such Additional Closing Date, as the case may be, to the effect that the representations and warranties of such Selling Shareholder in this Agreement are true and correct on and as of the Closing Date or such Additional Closing Date, as the case may be, with the same effect as if made on the Closing Date or such Additional Closing Date, as the case may be.

(h)The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, on the date hereof and at the Closing Date or such Additional Closing Date, as the case may be, letters (which may refer to letters previously delivered to one or more of the Representatives), dated, respectively, as of the date hereof and as of the Closing Date or such Additional Closing Date, as the case may be, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Underwriters with

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respect to the financial statements and certain financial information of the Company or CAH contained or incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus.

(i)Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Time of Sale Information or the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been: (i) any change or decrease specified in the letter or letters referred to in Section 7(h); or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).

(j)Prior to the Closing Date or such Additional Closing Date, as the case may be, the Company and the Selling Shareholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.

(k)Prior to the Closing Date or such Additional Closing Date, as the case may be, the Securities shall have been listed and admitted and authorized for trading on the NYSE, subject (in the case of the Primary Securities) only to notice of issuance.

(l)At or prior to the execution of this Agreement, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Selling Shareholder and from each of the individuals listed on Exhibit B hereto, in each case addressed to the Representatives.

(m)The Company shall have furnished to the Representatives a certificate of the Chief Financial Officer of the Company and the Operating Partnership, on the date hereof and at the Closing Date or such Additional Closing Date, as the case may be, letters (which may refer to letters previously delivered to one or more of the Representatives), dated, respectively, as of the date hereof and as of the Closing Date or such Additional Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Annex F hereto and to such further effect as counsel to the Underwriters may reasonably request.

(n)The Representatives shall have received the documentation referred to in Section 5(a) from each Selling Shareholder.

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If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or such Additional Closing Date, as the case may be, by the Representatives.  Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

The documents required to be delivered by this Section 7 shall be delivered at the office of Latham & Watkins LLP, counsel for the Underwriters, at 355 South Grand Avenue, Los Angeles, California 90071, on the Closing Date or such Additional Closing Date, as the case may be.

8.Reimbursement of Underwriters’ Expenses.  If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied or because of any termination pursuant to clause (a) of Section 11 hereof (as to the Common Shares only), the Company will reimburse the Underwriters severally through the Representatives on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.

9.Indemnification and Contribution.

(a)Indemnification by the Company and the Operating Partnership.  Each of the Company and the Operating Partnership, jointly and severally, agrees to (i) indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, any broker-dealer affiliate of an Underwriter involved in the distribution of the Securities, and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any of the other Time of Sale Information, any issuer free writing prospectus as defined in Rule 433(h) under the Act, any Company information that the Company has filed or is required to file pursuant to Rule 433(d) under the Act, any “road show” as defined in Rule 433(h) under the Act, or the Prospectus (or any amendment or supplement thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, or (y) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment or supplement thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and (ii) reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or

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action; provided, however, that neither the Company nor the Operating Partnership will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (c) below. This indemnity agreement will be in addition to any liability which the Company or the Operating Partnership may otherwise have.  

(b)Indemnification by the Selling Shareholders.  Each Selling Shareholder, severally and not jointly, agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, any broker-dealer affiliate of an Underwriter involved in the distribution of the Securities, and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act; provided, however, that this indemnity agreement shall only apply to the same extent as the foregoing indemnity in Section 9(a) from the Company and the Operating Partnership, but only with reference to written information furnished to the Company by or on behalf of such Selling Shareholder specifically for inclusion in the documents referred to in the foregoing indemnity; and, provided, further, that the liability of each Selling Shareholder under this subsection (b) shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, received by such Selling Shareholder from the sale of the Secondary Securities sold by such Selling Shareholder under this Agreement (the “Selling Shareholder Proceeds”).  This indemnity agreement will be in addition to any liability which any Selling Shareholder may otherwise have.

(c)Indemnification by the Underwriters.  Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, the Operating Partnership and each Selling Shareholder, each of the respective directors, trustees and officers, as applicable, of the Company, the Operating Partnership and (if such Selling Shareholder is not an individual) such Selling Shareholder, and each person who controls the Company, the Operating Partnership or such Selling Shareholder within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity in Section 9(a) from the Company and the Operating Partnership to each Underwriter, but only with reference to written information furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity.  This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.  The Company and the Operating Partnership acknowledge that the statements in the preliminary prospectus dated February 28, 2017 and the Prospectus set forth in the third, ninth and eleventh paragraphs under the heading “Underwriting” constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Registration Statement, any preliminary prospectus, any of the other Time of Sale Information, any free writing prospectus or the Prospectus.

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(d)Notice and Procedures.  Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party: (i) will not relieve it from liability under paragraph (a), (b) or (c) above to the extent it is not materially prejudiced as a result thereof; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a), (b) or (c) above.  The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.  Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if: (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.  An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent: (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding; and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

(e)Contribution.  In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 9 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company, the Operating Partnership, the Selling Shareholders and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company, the Operating Partnership, one or more of the Selling Shareholders or one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, the Operating Partnership and the Selling

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Shareholders, on the one hand, and by the Underwriters, on the other hand, from the offering of the Securities; provided, however, that in no case shall any Selling Shareholder be responsible for any amount in excess of the Selling Shareholder Proceeds.  If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company, the Operating Partnership, the Selling Shareholders and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, the Operating Partnership and the Selling Shareholders, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations.  Benefits received by the Company, the Operating Partnership and the Selling Shareholder shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by such party, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the prospectus supplement forming part of the Prospectus.  Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company, the Operating Partnership or the Selling Shareholders, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.  The Company, the Operating Partnership, the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above.  Notwithstanding the provisions of this paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 9, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee, agent and broker-dealer affiliate of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company, the Operating Partnership or any Selling Shareholder within the meaning of either the Act or the Exchange Act and each director, trustee and officer of the Company, the Operating Partnership or any Selling Shareholder shall have the same rights to contribution as the Company, the Operating Partnership or such Selling Shareholder, as applicable, subject in each case to the applicable terms and conditions of this paragraph (e).  The Underwriters’ obligations in this paragraph (e) to contribute are several in proportion to their respective underwriting obligations and not joint.  Notwithstanding anything to the contrary, in no event under this Section 9(e) shall any Underwriter (except as may be provided in any agreement among Underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission actually received by such Underwriter and applicable to the Securities purchased by such Underwriter hereunder.

10.Default by an Underwriter.  If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their

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obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Underwritten Securities set forth opposite their names in Schedule I hereto bears to the aggregate number of Underwritten Securities set forth opposite the names of all the remaining Underwriters in Schedule I hereto) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate number of Underwritten Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company, other than as set forth in Sections 4(h) and 9 hereof.  In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date or Additional Closing Date, as applicable, shall be postponed for such period, not exceeding five (5) business days, as the Representatives shall determine in order that the required changes in the Time of Sale Information and the Prospectus or in any other documents or arrangements may be effected.  Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company, any Selling Shareholder and any nondefaulting Underwriter for damages occasioned by its default hereunder.

11.Termination.  This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company and the Selling Shareholders prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment: (a) trading in the Company’s Common Shares shall have been suspended by the Commission or the NYSE or trading in securities generally on the NYSE or the NASDAQ Stock Market shall have been suspended or limited or minimum prices shall have been established on such exchange; (b) a banking moratorium shall have been declared either by federal or New York State authorities; (c) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Time of Sale Information or the Prospectus (exclusive of any amendment or supplement thereto); (d) a downgrading in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the Exchange Act) shall have occurred; or (e) any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the Exchange Act) shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s securities.

12.Representations and Indemnities to Survive.  The respective agreements, representations, warranties, indemnities, rights of contribution and other statements of the Company, the Operating Partnership, the Selling Shareholders or their respective officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, the Company, the Operating Partnership or any Selling Shareholder or any of the officers, directors, trustees, employees, agents or controlling persons referred to in Section 9 hereof, and will survive

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delivery of and payment for the Securities.  The provisions of Sections 4(h), 8, 9, 13 and this Section 12 shall survive the termination or cancellation of this Agreement.

13.Miscellaneous.

(a)Notices.  All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Equity Syndicate Desk (fax no: (212) 622-8358); Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York 10003, Attention: Syndicate Department; Deutsche Bank Securities Inc., 60 Wall Street, 2nd Floor, New York, New York 10005, Attention: Equity Capital Markets, Syndicate Desk, with a copy to: Deutsche Bank Securities Inc., 60 Wall Street, 36th Floor, New York, New York 10005 (Facsimile: (212) 797-9344), or, if sent to the Company or the Operating Partnership, will be mailed, delivered or telefaxed to Colony Starwood Homes, 8665 East Hartford Drive, Scottsdale, Arizona 85255, Attention: Ryan A. Berry; or, if sent to Starwood Capital Group Global, L.P., will be mailed, delivered or telefaxed to Starwood Capital Group, 1601 Washington Ave, Suite 800, Miami Beach, Florida 33139, with a copy to the attention of Ellis Rinaldi, 591 West Putnam Avenue, Greenwich, Connecticut 06830; or, if sent to Colony NorthStar, Inc., Colony Distressed Credit Fund II, L.P., ColCo Strategic Partners, L.P., Colony Capital CAH, L.P., Colony AH Member, LLC or CCCAH Management Partners, LLC, will be mailed, delivered or telefaxed to c/o Colony NorthStar, Inc., 515 South Flower Street, 44^th Floor, Los Angeles, CA 90071, Attn: Director of Legal.

 

(b)USA Patriot Act.  In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, the Operating Partnership and the Selling Shareholders, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

(c)Successors.  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, trustees, employees, agents, broker-dealer affiliates and controlling persons referred to in Section 9 hereof, and no other person will have any right or obligation hereunder.

(d)No Fiduciary Duty. Each of the Company, the Operating Partnership and the Selling Shareholders hereby acknowledges that: (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, the Operating Partnership and the Selling Shareholders, on the one hand, and the Underwriters and any affiliate through which any Underwriter may be acting, on the other hand; (ii) each Underwriter is acting as principal and not as an agent or fiduciary of the Company, the Operating Partnership or the Selling Shareholders; and (iii) the engagement of the Underwriters by the Company and the Selling Shareholders in connection with the offering and the process leading up to the offering of the Securities is as independent contractors and not in any other capacity.  Furthermore, each of the

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Company, the Operating Partnership and each Selling Shareholder agrees that such party is solely responsible for making such party’s own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising any such party on related or other matters).  Each of the Company, the Operating Partnership and each Selling Shareholder agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, the Operating Partnership or any Selling Shareholder, in connection with such transaction or the process leading thereto. Each of the Company, the Operating Partnership and the Selling Shareholders shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Company, the Operating Partnership or the Selling Shareholders with respect thereto.  Any review by the Representatives or any Underwriter of the Company, the Operating Partnership, the Selling Shareholders, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter and shall not be on behalf of the Company, the Operating Partnership, the Selling Shareholders or any other person.

(e)Integration.  This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, the Operating Partnership, the Selling Shareholders and the Underwriters, or any of them, with respect to the subject matter hereof.

(f)Applicable Law.  This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York without regard to its choice of law provisions.

(g)Waiver of Jury Trial.  Each of Company, the Operating Partnership and each Selling Shareholder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

(f)Submission to Jurisdiction.  Each of the Company and the Operating Partnership (i) submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; (ii) waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts; and (iii) agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company or the Operating Partnership, as applicable, and may be enforced in any court to the jurisdiction of which Company or the Operating Partnership, as applicable, is subject by a suit upon such judgment.

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(h)Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

(i)Headings.  The section headings used herein are for convenience only and shall not affect the construction hereof.

(j)Amendments or Waivers.  No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

(g)Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

(h)Time.  Time shall be of the essence of this Agreement.  Except as otherwise set forth herein, specified times of day refer to New York City time.

(k)Certain Defined Terms.  The terms that follow, when used in this Agreement, shall have the meanings indicated.

“Act” or “1933 Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

“affiliate” shall have the meaning set forth in Rule 405 under the Act.

“business day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.

“Commission” shall mean the Securities and Exchange Commission.

* * *

 

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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company, the Operating Partnership the Selling Shareholders and the several Underwriters.

 

Very truly yours,

 

Colony Starwood Homes

 

 

 

 

Colony Starwood Partnership, L.P.

 

By: Colony Starwood Homes GP, Inc.,

  its sole general partner

 

 

 

[Signature Page to Underwriting Agreement]

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Starwood Capital Group Global, L.P.

 

 

 

[Signature Page to Underwriting Agreement]

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CFI CSFR Investor, LLC

 

By: Colony Capital Operating Company, LLC,

         its managing member

 

 

 

 

Colony Distressed Credit Fund II, L.P.

 

By: Colony Capital Credit II, L.P., its general

         partner

 

By: ColonyGP Credit II, LLC, its general

         partner

 

 

 

 

ColCo Strategic Partners, L.P.

 

By: ColCoGP Strategic Partners, LLC, its

         general partner

 

 

 

Colony Capital CAH, L.P.

 

By: ColonyGP CAH, LLC, its general partner

 

 

[Signature Page to Underwriting Agreement]

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Colony AH Member, LLC

 

 

 

 

 

CCCAH Management Partners, LLC

 

By: Manager Holdco, LLC, its managing

         member

 

By: Colony AH Member, LLC, its managing

         member

 

 

 

 

 

[Signature Page to Underwriting Agreement]

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Accepted: As of the date first written above

 

Each for itself and on behalf of the several Underwriters listed in Schedule I hereto.

 

J.P. Morgan Securities LLC

 

 

[Signature Page to Underwriting Agreement]

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Accepted: As of the date first written above

 

Each for itself and on behalf of the several Underwriters listed in Schedule I hereto.

 

Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

 

 

[Signature Page to Underwriting Agreement]

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Accepted: As of the date first written above

 

Each for itself and on behalf of the several Underwriters listed in Schedule I hereto.

 

Deutsche Bank Securities Inc.

 

 

 

 

[Signature Page to Underwriting Agreement]

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Schedule I

 

 

 

SI-1

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Schedule II

 

 

 

SII-1

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Schedule III

 

Subsidiaries

 

SIII-1

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SIII-2

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ANNEX A

 

Time of Sale Information

 

 

 

 

EB-1