Exhibit 10.1
Execution Version
GREYSTONE HOUSING IMPACT INVESTORS LP
Beneficial Unit Certificates Representing Assigned Limited Partnership Interests
Amended and Restated Capital on Demand™ Sales Agreement
March 8, 2024
JonesTrading Institutional Services LLC
325 Hudson Street, 6th Floor
New York, NY 10013
BTIG, LLC
600 Montgomery Street
San Francisco, CA 94111
Ladies and Gentlemen:
Reference is made to the Capital on DemandTM Sales Agreement, dated as of July 21, 2021 (the “Original Agreement”), by and between GREYSTONE HOLDING IMPACT INVESTORS LP (formerly known as America First Multifamily Investors, L.P.), a Delaware limited partnership (the “Partnership”), and JONESTRADING INSTITUTIONAL SERVICES LLC (“JonesTrading”), pursuant to which the Partnership proposed to issue and sell through JonesTrading, from time to time during the term of the Original Agreement, on the terms and subject to the conditions set forth in the Original Agreement, beneficial unit certificates representing assigned limited partnership interests of the Partnership (“BUCs”). The Partnership, JonesTrading, and BTIG, LLC (“BTIG”; each of JonesTrading and BTIG an “Agent” and collectively, the “Agents”) wish to amend and restate the Original Agreement in its entirety as provided hereby.
The Partnership has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration statement on Form S-3 (File No. 333-268538), including a base prospectus, relating to certain securities, including the Placement Units to be issued from time to time by the Partnership, and which incorporates by reference documents that the Partnership has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder (the “Exchange Act Regulations”). The Partnership has prepared a prospectus supplement specifically relating to the Placement Units (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Partnership will furnish to the Agents, for use by the Agents, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Units. The Partnership may file, if necessary, one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement Units. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415 under the Securities Act by the Company to cover any Placement Units, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Partnership with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with any then issued Issuer Free Writing Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto, shall be deemed to refer to and include the documents incorporated or deemed to be incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
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Any certificate signed by an officer of the Partnership and delivered to the Agents or to counsel for the Agents pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Partnership, as applicable, to the Agents as to the matters set forth therein.
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the Partnership shall furnish the Agents (but in the case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(l). The requirement to provide a certificate under this Section 7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Partnership delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such waiver shall not apply for any Representation Date on which the Partnership files its annual report on Form 10-K. Notwithstanding the foregoing, if the Partnership subsequently decides to sell Placement Units following a Representation Date when the Partnership relied on such waiver and did not provide the Agents with a certificate under this Section 7(l), then before the Partnership delivers the Placement Notice or the Agents sell any Placement Units, the
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Partnership shall provide the Agents with a certificate, in the form attached hereto as Exhibit 7(l), dated the date of the Placement Notice.
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JonesTrading Institutional Services LLC
900 Island Park Drive, Suite 200
Daniel Island, SC 29492
Attn: Burke Cook
E-mail: burke@jonestrading.com
and
BTIG, LLC
600 Montgomery Street
San Francisco, CA 94111
Attention: Equity Capital Markets
Email: BTIGUSATMTrading@btig.com
with a copy (which shall not constitute notice) to:
Attention: General Counsel and Chief Compliance Officer
Emails: IBLegal@btig.com, BTIGCompliance@btig.com
with a copy to:
Duane Morris LLP
1540 Broadway
New York, NY 10036
Attn: James T. Seery
E-mail: jtseery@duanemorris.com
and if to the Partnership, shall be delivered to:
Greystone Housing Impact Investors LP
14301 FNB Parkway Suite 211
Omaha, NE 68154
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Attn: Jesse A. Coury
E-mail: Jesse.Coury@greyco.com
with a copy to:
Barnes & Thornburg LLP
11 S. Meridian Street
Indianapolis, Indiana 46204
Attn: David P. Hooper, Esq.
E-mail: david.hooper@btlaw.com
Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
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The Partnership represents, warrants and agrees that, unless it obtains the prior consent of the Agents (which consent shall not be unreasonably withheld or delayed), and each Agent represents, warrants and agrees that, unless it obtains the prior consent of the Partnership, it has not made and will not make any offer relating to the Placement Units that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Agents or by the Partnership, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Partnership represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
The Partnership acknowledges and agrees that:
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As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time” means (i) each Representation Date, (ii) the time of each sale of any Placement Units pursuant to this Agreement, and (iii) each Settlement Date.
“Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement Units that (1) is required to be filed with the Commission by the Partnership, (2) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Units or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Partnership’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such rules under the Securities Act Regulations.
“Trading Day” means any day on which BUCs are purchased and sold on the Exchange.
All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials
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prepared in connection with any offering, sale or private placement of any Placement Units by the Agents outside of the United States.
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If the foregoing correctly sets forth the understanding between the Partnership and each Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Partnership and the Agent.
Very truly yours,
GREYSTONE HOUSING IMPACT INVESTORS LP
By:/s/ Jesse A. Coury__________________
Name: Jesse A. Coury
Title: Chief Financial Officer
ACCEPTED as of the date first-above written:
JONESTRADING INSTITUTIONAL SERVICES LLC
By:/s/ Burke Cook____________________
Name: Burke Cook
Title: General Counsel
BTIG, LLC
By:/s/ Tosh Chandra___________________
Name: Tosh Chandra
Title: Managing Director
[Signature Page to Amended and Restated Capital on Demand™ Sales Agreement]
Execution Version
SCHEDULE 1
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FORM OF PLACEMENT NOTICE
__________________________
From: Greystone Housing Impact Investors LP
To: [JONESTRADING INSTITUTIONAL SERVICES LLC][BTIG, LLC]
Attention: _____________________
Subject: Placement Notice
Ladies and Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Amended and Restated Capital on Demand™ Sales Agreement between Greystone Housing Impact Investors LP (the “Partnership”), JonesTrading Institutional Services LLC and BTIG, LLC, dated March 8, 2024, the Partnership hereby requests that [identify Designated Agent] sell up to ____________ of the Partnership’s Beneficial Unit Certificates representing assigned limited partnership units (“BUCs”), at a minimum market price of $_______ per BUC, during the time period beginning [month, day, time] and ending [month, day, time].
Execution Version
SCHEDULE 2
__________________________
Compensation
__________________________
The Partnership shall pay to the Designated Agent in cash, upon each sale of Placement Units pursuant to this Agreement, an amount equal to 2% of the gross proceeds from each sale of Placement Units.
SCHEDULE 3
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Notice Parties
__________________________
The Partnership
Jesse Coury jesse.coury@greyco.com
Ken Rogozinski Ken.Rogozinski@greyco.com
Andy Grier andy.grier@greyco.com
Eric Nielsen eric.nielsen@greyco.com
With a copy to (which shall not constitute notice):
David P. Hooper david.hooper@btlaw.com
JonesTrading
Bryan Turley bturley@jonestrading.com
Moe Cohen moec@jonestrading.com
Burke Cook burke@jonestrading.com
Ryan Loforte rloforte@jonestrading.com
With a copy to JTCM@jonestrading.com
BTIG
BTIGUSATMTrading@btig.com
BTIGcompliance@btig.com
Tosh Chandra tchandra@btig.com
Stephen Nociti snociti@btig.com
Carrie Taylor ctaylor@btig.com
EXHIBIT 7(l)
Form of Representation Date Certificate
____________________, 20__
This Officers Certificate (this “Certificate”) is executed and delivered in connection with Section 7(l) of the Amended and Restated Capital on Demand™ Sales Agreement (the “Agreement”), dated March 8, 2024, and entered into between Greystone Housing Impact Investors LP (the “Partnership”), JonesTrading Institutional Services LLC and BTIG, LLC. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.
The undersigned, [__], Chief Financial Officer of the Partnership, having made all necessary inquiries to establish the accuracy of the statements below and having been authorized by the Partnership to execute this certificate, hereby certifies as follows:
The undersigned has executed this Representation Date Certificate as of the date first written above.
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1. Paragraph applicable only when Quarterly Information is relevant with respect to a Representation Date. |
GREYSTONE HOUSING IMPACT INVESTORS LP
By:_________________________________
Name:
Title: Chief Financial Officer