Amendment No. 1 to the Equity Distribution Agreement, dated August 1, 2024, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P., the Managers and the Forward Purchasers
Exhibit 1.1
MID-AMERICA APARTMENT COMMUNITIES, INC.
COMMON STOCK ($0.01 PAR VALUE PER SHARE)
AMENDMENT NO. 1 TO THE
EQUITY DISTRIBUTION AGREEMENT
August 1, 2024
To: | Citigroup Global Markets Inc. | Jefferies LLC | ||
388 Greenwich Street | 520 Madison Avenue | |||
New York, New York 10013 | New York, New York 10022 | |||
J.P. Morgan Securities LLC | KeyBanc Capital Markets Inc. | |||
383 Madison Avenue, 5th Floor | 127 Public Square, 7th Floor | |||
New York, New York 10179 | Cleveland, Ohio 44114 | |||
Truist Securities, Inc. | Wells Fargo Securities, LLC | |||
3333 Peachtree Road NE, 11th Floor | 500 West 33rd Street | |||
Atlanta, Georgia, 30326 | New York, New York 10001 | |||
Mizuho Securities USA LLC | TD Securities (USA) LLC | |||
1271 Avenue of the Americas | 1 Vanderbilt Avenue | |||
New York, New York 10020 | New York, New York 10017 | |||
BTIG, LLC | Nomura Securities International, Inc. | |||
65 East 55th Street | (as forward seller through BTIG, LLC) | |||
New York, New York 10022 | 309 West 49th Street | |||
New York, NY 10019 | ||||
As Managers | ||||
Citibank, N.A. | Jefferies LLC | |||
388 Greenwich Street | 520 Madison Avenue | |||
New York, New York 10013 | New York, New York 10022 | |||
JPMorgan Chase Bank, | KeyBanc Capital Markets Inc. | |||
National Association | 127 Public Square, 7th Floor | |||
383 Madison Avenue, 5th Floor | Cleveland, Ohio 44114 | |||
New York, New York 10179 | ||||
Truist Bank | Wells Fargo Bank, | |||
3333 Peachtree Road NE, 11th Floor | National Association | |||
Atlanta, Georgia, 30326 | 500 West 33rd Street | |||
New York, New York 10001 | ||||
Mizuho Markets Americas LLC | The Toronto-Dominion Bank | |||
c/o Mizuho Securities USA LLC, as agent | 1 Vanderbilt Avenue | |||
1271 Avenue of the Americas | New York, New York 10017 | |||
New York, New York 10020 |
Nomura Global Financial |
Products, Inc. 309 West 49th Street |
New York, NY 10019 |
As Forward Purchasers
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated November 4, 2021 (the Agreement), by and among Mid-America Apartment Communities, Inc. (the Company) and Citigroup Global Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., Truist Securities, Inc. and Wells Fargo Securities, LLC, as sales agents, principals and forward sellers (in any such capacity, each a Manager) and Citibank, N.A., Jefferies LLC, JPMorgan Chase Bank, National Association, KeyBanc Capital Markets Inc., Truist Bank and Wells Fargo Bank, National Association, each as forward purchaser (in such capacity, each a Forward Purchaser). Terms used herein but not otherwise defined are used herein as defined in the Agreement. The parties, intending to be legally bound, hereby amend the Agreement as follows (the Amendment):
1. The first paragraph of the Agreement is hereby amended and restated as follows:
Mid-America Apartment Communities, Inc., a Tennessee corporation (the Company), confirms its agreements with Citigroup Global Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., Truist Securities, Inc., Wells Fargo Securities, LLC, Mizuho Securities USA LLC, TD Securities (USA) LLC, BTIG, LLC and Nomura Securities International, Inc., each as sales agent and/or principal (except in the case of Nomura Securities International, Inc.) and/or forward sellers (except in the case of BTIG, LLC) (in any such capacity, each a Manager) and Citibank, N.A., Jefferies LLC, JPMorgan Chase Bank, National Association, KeyBanc Capital Markets Inc., Truist Bank, Wells Fargo Bank, National Association, Mizuho Markets Americas LLC, The Toronto-Dominion Bank and Nomura Global Financial Products, Inc., each as forward purchaser (in such capacity, each a Forward Purchaser). For purposes of clarity, it is understood and agreed by the parties hereto that, if Shares (as defined below) are offered or sold through any Manager as forward seller for the applicable Forward Purchaser, then such Manager, as forward seller, shall be acting as sales agent for such Forward Purchaser with respect to the offering and sale of such Shares, and, except in cases where this Agreement (as defined below) expressly refers to a Manager acting as sales agent for the Company or unless otherwise expressly stated or the context otherwise requires, references in this Agreement to any Manager acting as sales agent shall also be deemed to apply to such Manager when acting as forward seller, mutatis mutandis.
2. The fifth paragraph of the Agreement is hereby amended and restated as follows:
The Company and Mid-America Apartments, L.P., a Tennessee limited partnership and majority owned subsidiary of the Company (the Operating Partnership), have prepared and filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the
Securities Act) a registration statement (File Nos. 333-279076 and 333-279076-01), including a prospectus, on Form S-3ASR, relating to securities (the Shelf Securities), including the Shares, to be issued from time to time by the Company, which registration statement became effective upon filing under Rule 462(e) of the Securities Act. The Company may file one or more additional registration statements on Form S-3ASR from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable, with respect to the Shares. Except where the context otherwise requires, such registration statement(s), as amended at each time of effectiveness under the Securities Act, including the information deemed pursuant to Rule 430B under the Securities Act to be part of the registration statement at the time of its effectiveness ( Rule 430 Information), are referred to herein as the Registration Statement; and as used herein, Prospectus Supplement means the final prospectus supplement, relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on the date hereof, in the form furnished by the Company to the Managers in connection with the offering of the Shares, Base Prospectus means the related prospectus covering the Shelf Securities and filed as part of the Registration Statement, together with any amendments or supplements thereto as of the most recent effective date of the Registration Statement, and Prospectus means the Base Prospectus as amended and supplemented by the Prospectus Supplement and any applicable pricing supplement thereto and the most recent Interim Prospectus Supplement (as defined herein), if any.
3. Applicable Law; Submission to Jurisdiction. This Amendment and all the rights and obligations of the parties shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice of law or conflicting provision or rule (whether of the State of New York, or any other jurisdiction) that would cause the laws of any jurisdiction other than the State of New York to be applied. The Company hereby 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. The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such judgment.
4. Counterparts. This Amendment may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
5. Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.
(Signature Pages Follow)
If the foregoing is in accordance with your understanding of our agreement, please sign and return the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and each of you.
Mid-America Apartment Communities, Inc. | ||||
By: | /s/ A. Clay Holder | |||
Name: | A. Clay Holder | |||
Title: | Executive Vice President and Chief Financial Officer |
[Signature Page to Equity Distribution Agreement Amendment No. 1]
Citigroup Global Markets Inc. | ||
By: | /s/ Kase Lawal | |
Name: Kase Lawal | ||
Title: Director | ||
Jefferies LLC | ||
By: | /s/ Michael Magarro | |
Name: Michael Magarro | ||
Title: Managing Director | ||
J.P. Morgan Securities LLC | ||
By: | /s/ Sanjeet Dewal | |
Name: Sanjeet Dewal | ||
Title: | ||
KeyBanc Capital Markets Inc. | ||
By: | /s/ Jaryd Banach | |
Name: Jaryd Banach | ||
Title: Managing Director, Equity Capital Markets | ||
Truist Securities, Inc. | ||
By: | /s/ Geoffrey Fennel | |
Name: Geoffrey Fennel | ||
Title: Director | ||
Wells Fargo Securities, LLC | ||
By: | /s/ Rohit Mehta | |
Name: Rohit Mehta | ||
Title: Executive Director |
[Signature Page to Equity Distribution Agreement Amendment No. 1]
Mizuho Securities USA LLC | ||
By: | /s/ Ivana Rupcic-Hulin | |
Name: Ivana Rupcic-Hulin | ||
Title: Managing Director | ||
TD Securities (USA) LLC | ||
By: | /s/ Adriano Pierroz | |
Name: Adriano Pierroz | ||
Title: Director | ||
BTIG, LLC | ||
By: | /s/ Michael Passaro | |
Name: Michael Passaro | ||
Title: Managing Director | ||
Nomura Securities International, Inc. | ||
By: | /s/ Jason Eisenhauer | |
Name: Jason Eisenhauer | ||
Title: Managing Director |
As Managers
[Signature Page to Equity Distribution Agreement Amendment No. 1]
Citibank, N.A. | ||
By: | /s/ Eric Natelson | |
Name: Eric Natelson | ||
Title: Authorized Signatory | ||
Jefferies LLC | ||
By: | /s/ Michael Magarro | |
Name: Michael Magarro | ||
Title: Managing Director | ||
JPMorgan Chase Bank, National Association | ||
By: | /s/ Sanjeet Dewal | |
Name: Sanjeet Dewal | ||
Title: Managing Director | ||
KeyBanc Capital Markets Inc. | ||
By: | /s/ Jaryd Banach | |
Name: Jaryd Banach | ||
Title: Managing Director, Equity Capital Markets | ||
Truist Bank | ||
By: | /s/ Michael Collins | |
Name: Michael Collins | ||
Title: Managing Director | ||
Wells Fargo Bank, National Association | ||
By: | /s/ Elizabeth Alvarez | |
Name: Elizabeth Alvarez | ||
Title: Managing Director |
[Signature Page to Equity Distribution Agreement Amendment No. 1]
Mizuho Markets Americas LLC | ||
By: | /s/ Matthew E. Chiavaroli | |
Name: Matthew E. Chiavaroli | ||
Title: Authorized Signatory | ||
The Toronto-Dominion Bank | ||
By: | /s/ Vanessa Simonetti | |
Name: Vanessa Simonetti | ||
Title: Managing Director | ||
Nomura Global Financial Products, Inc. | ||
By: | /s/ Jeffrey Petillo | |
Name: Jeffrey Petillo | ||
Title: Authorized Representative |
As Forward Purchasers, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in the Agreement
[Signature Page to Equity Distribution Agreement Amendment No. 1]