SUN COMMUNITIES, INC. Amendment No. 2 To At the Market Offering Sales Agreement
Exhibit 1.1
Execution Version
SUN COMMUNITIES, INC.
Amendment No. 2
To At the Market Offering
Sales Agreement
May 3, 2024
| BMO Capital Markets Corp. 000 X 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Bank of Montreal 00 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx | |
| BofA Securities, Inc. One Bryant Park |
Bank of America, N.A. One Bryant Park | |
| Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
JPMorgan Chase Bank, National Association 000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| RBC Capital Markets, LLC 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Royal Bank of Canada 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Citizens JMP Securities, LLC 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000 |
Citizens JMP Securities, LLC 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx, 00000 | |
| Xxxxx Fargo Securities, LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxx Fargo Bank, National Association 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Xxxxxx X. Xxxxx & Co. Incorporated 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx 00000 |
Xxxxxx X. Xxxxx & Co. Incorporated 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx 00000 | |
| Regions Securities LLC 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
Regions Securities LLC 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
| Truist Securities, Inc. 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx Xxxxxxx, Xxxxxxx 00000 |
Truist Bank 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx Xxxxxxx, Xxxxxxx 00000 | |
| BTIG, LLC 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Nomura Global Financial Products, Inc. 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 | |
| Scotia Capital (USA) Inc. 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
The Bank of Nova Scotia 00 Xxxx Xxxxxx Xxxx Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 | |
| Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Fifth Third Securities, Inc. 000 Xxxxxx Xxxxxx, Xxxxxxxx: XXXX0X Xxxxxxxxx, Xxxxxxxxx 00000 |
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| SMBC Nikko Securities America, Inc. 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
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| Wedbush Securities Inc. 000 X 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 |
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| Xxxxxx X. Xxxxxxx & Company, Inc. 00 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
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| Nomura Securities International, Inc. 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000
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| As Sales Agents | As Forward Purchasers | |
Ladies and Gentlemen:
Reference is made to the At the Market Offering Sales Agreement dated December 17, 2021, as amended by that certain Amendment No. 1 to At the Market Offering Sales Agreement dated March 13, 2024 (as amended, the “Agreement”), among Sun Communities, Inc., a corporation organized and existing under the laws of the State of Maryland (the “Company”), Sun Communities Operating Limited Partnership, a Michigan limited partnership (the “Operating Partnership”), and BMO Capital Markets Corp. (“BMO Capital Markets”), BofA Securities, Inc. (“BofA Securities”), Citigroup Global Markets Inc. (“Citigroup”), X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”), RBC Capital Markets, LLC (“RBC Capital Markets”), Regions Securities LLC
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(“Regions Securities”), Fifth Third Securities, Inc. (“Fifth Third”), BTIG, LLC (“BTIG”), Xxxxxxxxx LLC (“Jefferies”), Xxxxxx X. Xxxxxxx & Company, Inc. (“Xxxxxxx”) and Xxxxxx X. Xxxxx & Co. Incorporated (“Baird”) as sales agent, principal and/or (except in the case of Regions Securities, Fifth Third, BTIG, Xxxxxxxxx, Xxxxxxx and Xxxxx) forward seller (in such capacity, each a “Sales Agent” and collectively, the “Sales Agents”), and each of Bank of Montreal (“BMO”), Bank of America, N.A. (“BofA”), Citibank, N.A. (“Citibank”), JPMorgan Chase Bank, National Association (“JPMorgan Chase Bank”) and Royal Bank of Canada (“RBC”), or one of their respective affiliates, as forward purchaser (in such capacity, each a “Forward Purchaser” and collectively, the “Forward Purchasers”), pursuant to which the Company may (i) issue and sell through or to the Sales Agents shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”) and (ii) instruct the applicable Sales Agents, each as forward seller, to offer and sell shares of Common Stock borrowed by the applicable Forward Purchaser, having an aggregate sale price of up to $ 1,250,000,000. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
On April 2, 2021, the Company filed, in accordance with the provisions of the Securities Act, with the Commission a registration statement on Form S-3 (File No. 333-255020), including a base prospectus (the “2021 Base Prospectus”), relating to certain securities, including the Shares, and which incorporates by reference documents that the Company has filed in accordance with the provisions of the Exchange Act. Such registration statement, as amended, when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “2021 Registration Statement.” In addition, on December 17, 2021, the Company filed a prospectus supplement to the 2021 Base Prospectus with the Commission specifically relating to the Shares (the “2021 Prospectus Supplement”).
In connection with the expiration of the 2021 Registration Statement, on March 29, 2024, the Company filed with the Commission a new registration statement (the “2024 Registration Statement”) on Form S-3 (File No. 333-278371), including a base prospectus (the “2024 Base Prospectus”), relating to certain securities, including the Shares that may be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Exchange Act. In addition, on May 3, 2024, the Company filed a prospectus supplement to the 2024 Base Prospectus with the Commission specifically relating to the Shares (the “2024 Prospectus Supplement”).
The parties wish to amend the Agreement through this Amendment No. 2 To At the Market Offering Sales Agreement (this “Amendment”) to add certain parties as sales agents and forward purchasers under the Agreement, to modify the definition of certain defined terms set forth in the Agreement and used therein and to make certain other changes to the Agreement with effect on and after the date hereof (the “Effective Date”).
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| 1. | Amendments to the Agreement. The parties agree, from and after the Effective Date, that: |
(a) Any reference to the defined term “Sales Agents” in the Agreement shall mean BMO Capital Markets, BofA Securities, Citigroup, X.X. Xxxxxx, RBC Capital Markets, Citizens JMP Securities, LLC (“Citizens JMP”), Xxxxx Fargo Securities, LLC (“Xxxxx Fargo Securities”), Baird, Regions Securities, Truist Securities, Inc. (“Truist Securities”), BTIG, Scotia Capital (USA) Inc. (“Scotia Capital”), Xxxxxxx Xxxxx & Co. LLC (“Xxxxxxx Xxxxx”), Jefferies, Fifth Third, SMBC Nikko Securities America, Inc. (“SMBC Nikko”), Wedbush Securities Inc. (“Wedbush”), Xxxxxxx and, solely in its capacity as forward seller, Nomura Securities International, Inc. (as forward seller through BTIG as its agent) (“NSI”). By executing and delivering this Amendment, each of Citizens JMP, Xxxxx Fargo Securities, Truist Securities, Scotia Capital, Xxxxxxx Xxxxx, SMBC Nikko, Wedbush and, solely in its capacity as forward seller, NSI agrees to become a party to and to be bound as a Sales Agent by all of the terms and conditions of the Agreement.
(b) Any reference to the defined term “Forward Purchaser” in the Agreement shall mean BMO, BofA, Citibank, JPMorgan Chase Bank, RBC, Citizens JMP, Xxxxx Fargo Bank, National Association (“Xxxxx Fargo Bank”), Baird, Regions Securities, Truist Bank, Nomura Global Financial Products, Inc. (“NGFP”), The Bank of Nova Scotia, Xxxxxxx Xxxxx and Jefferies. By executing and delivering this Amendment, each of Citizens JMP, Xxxxx Fargo Bank, Baird, Regions Securities, Truist Bank, NGFP, The Bank of Nova Scotia, Xxxxxxx Xxxxx and Jefferies agrees to become a party to and to be bound as a Forward Purchaser by all of the terms and conditions of the Agreement.
(c) In the context of Shares that remain available to be sold as of the Effective Date, any reference in the Agreement to the “Registration Statement” shall no longer be deemed to refer to the 2021 Registration Statement but shall instead be deemed to refer to the 2024 Registration Statement.
(d) In the context of Shares that remain available to be sold as of the Effective Date, any reference in the Agreement to the “Base Prospectus” shall no longer be deemed to refer to the 2021 Base Prospectus but shall instead be deemed to refer to the 2024 Base Prospectus.
(e) In the context of Shares that remain available to be sold as of the Effective Date, any reference in the Agreement to the “Prospectus Supplement” shall no longer be deemed to refer to the 2021 Prospectus Supplement but shall instead be deemed to refer to the 2024 Prospectus Supplement.
(f) In the context of Shares that remain available to be sold as of the Effective Date, any reference in the Agreement to the “Prospectus” shall no longer be deemed to collectively refer to the 2021 Base Prospectus as supplemented by the 2021 Prospectus Supplement and any Free Writing Prospectus but shall instead be deemed to collectively refer to the 2024 Base Prospectus as supplemented by the 2024 Prospectus Supplement and any Free Writing Prospectus.
(g) The first sentence of the fourth paragraph of Section 1 is hereby amended to delete reference to “333-255020” and insert “333-278371” in lieu thereof.
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(h) Section 4(k) is hereby amended and restated in its entirety to read as follows:
“(k) Expenses. The Company agrees with each Sales Agent and each Forward Purchaser, whether or not the transactions contemplated hereunder and under any Confirmation are consummated or this Agreement or any Confirmation is terminated, to pay all costs, fees and expenses incurred in connection with the performance of the Company’s obligations hereunder and in connection with the transactions contemplated hereby and under any Confirmation, including, without limitation: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration of the Shares under the Securities Act and all other expenses in connection with the preparation, printing, reproduction and filings of the Registration Statement, the Prospectus and any Free Writing Prospectus and the mailing and delivering of copies thereof to the Sales Agents and the Forward Purchasers, (ii) the cost of printing or producing this Agreement, the closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares and any Confirmation Shares, (iii) all expenses in connection with the qualification of the Shares and any Confirmation Shares for offering and sale under state securities laws as provided in Section 4(i) hereof, (iv) all fees and expenses in connection with listing the Shares and any Confirmation Shares on the NYSE, and any stock or transfer taxes and stamp or similar duties on the issuance and listing of the Shares and any Confirmation Shares, (v) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Sales Agents and the Forward Purchasers in connection with determining their compliance with the rules and regulations of FINRA related to their participation in the transactions contemplated hereunder, (vi) the cost of preparing stock certificates, (vii) the cost and charges of any transfer agent or registrar, (viii) all other costs and expenses incident to the performance of the Company’s obligations hereunder which are not otherwise specifically provided for in this Section and (ix) if Shares having an aggregate offering price of $50,000,000 or more have not been offered and sold under this Agreement collectively during the period beginning on the Effective Date and ending on the thirty-six-month anniversary of the Effective Date (or such earlier date on which the Company terminates this Agreement), the Company shall reimburse the Sales Agents and the Forward Purchasers for up to $200,000 of their reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Sales Agents and the Forward Purchasers incurred by the Sales Agents and the Forward Purchasers in connection with the transactions contemplated by this Agreement and any Confirmation.”
(i) Section 9(a) is hereby amended and restated in its entirety to read as follows:
“(a) if sent to a Sales Agent, shall be delivered to the applicable Sales Agent as follows:
BMO Capital Markets Corp., 000 X 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx, Telephone: (000) 000-0000, Facsimile: (000) 000-0000, with a copy to the Legal Department
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BofA Securities, Inc., Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (000) 000-0000, Attention: ATM Execution Team,
email: xx.xxx_xxxxxxxxx@xxxx.xxx, Facsimile: (000) 000-0000 with copies to ECM Legal, Facsimile: (000) 000-0000
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Fax: (000) 000-0000, Attention: xx.xxxxxxxxxxxxx.xxx@xxxx.xxx, xxxxxxx.x.xxxxxx@xxxx.xxx, xxxxx.xxxxxxx.xxxxx@xxxx.xxx, xxxxxx.xxxxxxxx@xxxx.xxx
X.X. Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxxxxx Xxxxx, Facsimile: (000) 000-0000, Email: xxxxxxx.x.xxxxx@xxxxxxxx.xxx
RBC Capital Markets, LLC, Attention: Equity Syndicate, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: XX Xxxxxxx, facsimile: (000) 000-0000 and email: xx.xxxxxxx@xxxxx.xxx
Citizens JMP Securities, LLC, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000, Attention: Equity Syndicate (email: xxxxxxxxx@xxxxxxxxxxxxx.xxx), Facsimile: (000) 000-0000
Xxxxx Fargo Securities, LLC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Department (fax no: (000) 000-0000)
Xxxxxx X. Xxxxx & Co. Incorporated, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Syndicate Department (facsimile: (000) 000-0000), with a copy to the Legal Department, (Fax: (000) 000-0000)
Regions Securities LLC, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Corporate Services Desk, Xxxx Xxxxxxxx (email xxxx.xxxxxxxx@xxxxxxx.xxx) and xxxxxxx@xxxxxxx.xxx
Truist Securities Inc., 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attn: Equity Capital Markets, xx.xxx.xxxxxxxx@xxxxxx.xxx
BTIG, LLC, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets, email: XXXXXXXXXXxxxxxx@xxxx.xxx, with copies (which shall not constitute notice) to: BTIG, LLC, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: General Counsel and Chief Compliance Officer, Email: XXXXxxxxxxxxxx@xxxx.xxx, Email: XXXxxxx@xxxx.xxx
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Scotia Capital (USA) Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets, Facsimile: 000-000-0000, Email: xx.xxx@xxxxxxxxxx.xxx, xx.xxxxx@xxxxxxxxxx.xxx
Xxxxxxx Xxxxx & Co. LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx Xxxxx, Xxxx Xxxx, Equity Capital Markets, Telephone: 000-000-0000 Facsimile: 000-000-0000, Email: xxxxxxx.xxxxx@xx.xxx; xxxx.xxxx@xx.xxx, with copies to xx-xxxxx@xx.xxxxx.xx.xxx; Xx-xxxxxx-xxxxxxxxxxxxx@xx.xxx.xx.xxx
Xxxxxxxxx LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel
Fifth Third Securities, Inc., 000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx XX 00000, Attn: Xxxxx Xxxxxxxxx. Fax number: # 000 000-0000
SMBC Nikko Securities America, Inc., 000 Xxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, XX 00000, Attention Equity Capital Markets
Wedbush Securities Inc., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxx, email: xxxxx.xxxxxxx@xxxxxxx.xxx, Xxxx Xxxx, email: xxxx.xxxx@xxxxxxx.xxx, Xxxxx Xxxxxx, email: xxxxx.xxxxxx@xxxxxxx.xxx, Xxx Xxxxx, email: xxx.xxxxx@xxxxxxx.xxx, Xxxxx Xxx, email: xxxxx.xxx@xxxxxxx.xxx, with a copy to xxx@xxxxxxx.xxx and xxxxx@xxxxxxx.xxx
Xxxxxx X. Xxxxxxx & Company, Inc., 00 Xxxxxxxx, 00xx Xxxxx,
New York, New York 10006, Attention: Xxxxx Xxxxxxx
Nomura Securities International, Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Structured Equity Solutions, Email: xxxxxxxxxxx@xxxxxx.xxx, with a copy (which shall not constitute notice) to: Nomura Securities International, Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Equities Legal, Email: Xxx.Xxxxxxxxx@xxxxxx.xxx, and to: BTIG, LLC as agent of the Forward Seller, at the Sales Agreement Notice Addresses for BTIG, LLC provided above
and in each case, with a copy to Xxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxx, Xxx., email: xxxxxxxxx@xxxxxxxxxxxx.xxx”
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(j) Section 9(b) is hereby amended and restated in its entirety to read as follows:
“(b) if sent to a Forward Purchaser, shall be delivered to the applicable Forward Purchaser as follows:
Bank of Montreal, 00 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx, Attention: Manager, Derivatives Operations, Facsimile: (000) 000-0000, Telephone: (000) 000-0000; with a copy to: Bank of Montreal, 000 Xxxx Xxxxxx Xxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx, Attention: Associate General Counsel & Managing Director, Derivatives Legal Group, Facsimile: (000) 000-0000
Bank of America, N.A., Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx of Xxxxx Xxxxx (email: xxxxx.xxxxx@xxxx.xxx)
Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Fax: (000) 000-0000, Attention: xx.xxxxxxxxxxxxx.xxx@xxxx.xxx, xxxxxxx.x.xxxxxx@xxxx.xxx, xxxxx.xxxxxxx.xxxxx@xxxx.xxx, xxxxxx.xxxxxxxx@xxxx.xxx
JPMorgan Chase Bank, National Association, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: EDG Marketing Support, E-mail: xxx_xxxxxxx@xxxxxxxx.xxx, xxx_xx_xxxxxxxxx_xxxxx_xxxxxxx@xxxxxxxx.xxx, with a copy to: Attention: Xxxxxxx Xxxxx, E-mail: xxxxxxx.x.xxxxx@xxxxxxxx.xxx
Royal Bank of Canada, 000 Xxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ECM (email: XXXXXXXxxxxxxxxXxxxxxXxxxxxXxxxxxxxxxxxx@xxx.xxx)
Citizens JMP Securities, LLC, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Equity Syndicate (email: xxxxxxxxx@xxxxxxxxxxxxx.xxx), Facsimile: (000) 000-0000
Xxxxx Fargo Bank, National Association, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Equity Derivatives
Xxxxxx X. Xxxxx & Co. Incorporated, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Syndicate Department (facsimile: (000) 000-0000), with a copy to the Legal Department, (Fax: (000) 000-0000)
Regions Securities LLC, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: ECM Desk, Xxxx Xxxxxxxx (email xxxx.xxxxxxxx@xxxxxxx.xxx) and xxxxxxx@xxxxxxx.xxx
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Truist Bank, 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attn: Equity Capital Markets, xx.xxx.xxxxxxxx@xxxxxx.xxx, With a copy to: Xxxxxxx Xxxxxxx, Managing Director, (000) 000-0000, xxxxxxx.xxxxxxx@xxxxxx.xxx
Nomura Global Financial Products, Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Structured Equity Solutions, Email: xxxxxxxxxxx@xxxxxx.xxx, with a copy (which shall not constitute notice) to: Nomura Global Financial Products, Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Equities Legal, Email: xxxxxxxxxxxxxxx@xxxxxx.xxx, and to: BTIG, LLC, at the Sales Agreement Notice Addresses for BTIG, LLC provided above
The Bank of Nova Scotia, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, c/o Scotia Capital (USA) Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: US Equity Derivatives, Email: xxxxx.xxxxxxx@xxxxxxxxxx.xxx, xxxx.xxxxx@xxxxxxxxxx.xxx, Telephone No.: 000-000-0000 / 000-000-0000, And a copy to: XXXXxxxxxXxxxxxxxxxxxx@xxxxxxxxxx.xxx
Xxxxxxx Xxxxx & Co. LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx Xxxxx, Xxxx Xxxx, Equity Capital Markets, Telephone: 000-000-0000 Facsimile: 000-000-0000, Email: xxxxxxx.xxxxx@xx.xxx; xxxx.xxxx@xx.xxx, with copies to xx-xxxxx@xx.xxxxx.xx.xxx; Xx-xxxxxx-xxxxxxxxxxxxx@xx.xxx.xx.xxx
Xxxxxxxxx LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Strategic Equity Transactions Group, email addresses: XXXXXX@xxxxxxxxx.xxx and XxxxXxXxxxx@xxxxxxxxx.xxx;”
(k) Section 9(c) is hereby amended and restated in its entirety to read as follows:
“(c) or if sent to the Company or the Operating Partnership, shall be delivered to 00000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Fax (000) 000-0000, Attention: Xxxxxxxx Xxxxxx-Xxxxxxxx, email: Xxxxxxxx Xxxxxx-Xxxxxxxx, xxxxxxx@xxxxxxxxxxxxxx.xxx, with copies to Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 00000 Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000, Fax: (000) 000-0000, Attention: Xxxxxxx Xxxxxx, Esq., email: xxxxxxx@xxxxxxx.xxx.”
(l) Schedule 2 of the Agreement is hereby deleted in its entirety and replaced with the Schedule 2 attached hereto.
(m) Schedule 6 of the Agreement is hereby deleted in its entirety and replaced with the Schedule 6 attached hereto.
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2. No Other Amendments; References to Agreements. Except as set forth in this Amendment, all other terms and provisions of the Agreement shall continue in full force and effect. All references to the Agreement in the Agreement or in any other document executed or delivered in connection therewith shall, from the date hereof, be deemed a reference to the Agreement as amended by this Amendment. Notwithstanding anything to the contrary contained herein, this Amendment shall not have any effect on offerings or sales of the Shares prior to the Effective Date or on the terms of the Agreement and the rights and obligations of the parties thereunder, insofar as they relate to such offerings or sales, including, without limitation, the representations, warranties and agreements (including the indemnification and contribution provisions), as well as the definitions of “Registration Statement,” “Base Prospectus,” “Prospectus Supplement” and “Prospectus” contained in the Agreement.
3. Applicable Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws.
4. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
5. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and 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., xxx.xxxxxxxx.xxx (any such signature, an “Electronic Signature”)) 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. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include any Electronic Signature, except to the extent electronic notices are expressly prohibited under this Agreement.
[Signature Page Follows]
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If the foregoing correctly sets forth the understanding among the Company, the Operating Partnership, the Sales Agents and the Forward Purchasers, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company, the Operating Partnership, the Sales Agents and the Forward Purchasers.
| Very truly yours, | ||
| SUN COMMUNITIES, INC. | ||
| By: | /s/ Xxxxxxxx Xxxxxx-Xxxxxxxx | |
| Name: Xxxxxxxx Xxxxxx-Xxxxxxxx | ||
| Title: Chief Financial Officer | ||
| SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP | ||
| By: | Sun Communities, Inc., its General Partner | |
| By: | /s/ Xxxxxxxx Xxxxxx-Xxxxxxxx | |
| Name: Xxxxxxxx Xxxxxx-Xxxxxxxx | ||
| Title: Chief Financial Officer | ||
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| BMO CAPITAL MARKETS CORP., as Sales Agent | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: |
Xxxx Xxxxxxxx | |
| Title: |
Co-Head, Global Equity Capital Markets | |
| BANK OF MONTREAL, as Forward Purchaser | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: |
Xxxxx Xxxxx | |
| Title: |
Managing Director, Global Markets | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| BOFA SECURITIES, INC., as Sales Agent | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | |
| Title: | Managing Director | |
| BANK OF AMERICA, N.A., as Forward Purchaser | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| CITIGROUP GLOBAL MARKETS INC., as Sales Agent | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Vice President | |
| CITIBANK, N.A., as Forward Purchaser | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Authorized Signatory | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| X.X. XXXXXX SECURITIES LLC, as Sales Agent | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Executive Director | |
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Forward Purchaser | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Executive Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| RBC CAPITAL MARKETS, LLC, as Sales Agent | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Managing Director (Head of U.S. Real Estate) | |
| ROYAL BANK OF CANADA, as Forward Purchaser | ||
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| REGIONS SECURITIES LLC, as Sales Agent | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |
| Name | Xxxxxx X. Xxxxxxxxx | |
| Title: | Managing Director - ECM | |
| REGIONS SECURITIES LLC, as Forward Purchaser | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxxx | |
| Title: | Managing Director - ECM | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| XXXXXXXXX LLC, as Sales Agent | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
| XXXXXXXXX LLC, as Forward Purchaser | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| CITIZENS JMP SECURITIES, LLC, as Sales Agent | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Managing Director | |
| CITIZENS JMP SECURITIES, LLC, as Forward Purchaser | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| XXXXX FARGO SECURITIES, LLC, as Sales Agent | ||
| By: | /s/ Xxxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Forward Purchaser | ||
| By: | /s/ Xxxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| TRUIST SECURITIES, INC., as Sales Agent | ||
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxx Xxxxxx | |
| Title: | Director | |
| TRUIST BANK, as Forward Purchaser | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| SCOTIA CAPITAL (USA) INC., as Sales Agent | ||
| By: | /s/ Xxx Xxxx | |
| Name: | Xxx Xxxx | |
| Title: | Managing Director | |
| THE BANK OF NOVA SCOTIA, as Forward Purchaser | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| XXXXXXX XXXXX & CO. LLC, as Sales Agent | ||
| By: | /s/ Xxxx Xxxx | |
| Name: |
Xxxx Xxxx | |
| Title: |
Managing Director | |
| XXXXXXX XXXXX & CO. LLC, as Forward Purchaser | ||
| By: | /s/ Xxxx Xxxx | |
| Name: |
Xxxx Xxxx | |
| Title: |
Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| BTIG, LLC, as Sales Agent | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| NOMURA GLOBAL FINANCIAL PRODUCTS, INC., as Forward Purchaser | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Authorized Representative | |
| NOMURA SECURITIES INTERNATIONAL, INC., as Forward Seller | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| XXXXXX X. XXXXX & CO. INCORPORATED, as Sales Agent | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Co-Head of ECM | |
| XXXXXX X. XXXXX & CO. INCORPORATED, as Forward Purchaser | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Co-Head of ECM | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| FIFTH THIRD SECURITIES, INC., as Sales Agent | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: |
Xxxxxxx Xxxxxx | |
| Title: |
Head of Equity Capital Markets | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| XXXXXX X. XXXXXXX & COMPANY, INC., as Sales Agent | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| SMBC NIKKO SECURITIES AMERICA, INC., as Sales Agent | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxxxxxx | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
| ACCEPTED as of the date first-above written: | ||
| WEDBUSH SECURITIES INC., as Sales Agent | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: |
Xxxxx Xxxxxxx | |
| Title: |
EVP Head of Investment Banking | |
[Signature page to Amendment No. 2 To At the Market Offering Sales Agreement]
