SPIRIT REALTY CAPITAL, INC. COMMON STOCK (PAR VALUE $0.05 PER SHARE) AMENDMENT NO. 1 TO AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.1
Execution Version
SPIRIT REALTY CAPITAL, INC.
COMMON STOCK (PAR VALUE $0.05 PER SHARE)
AMENDMENT NO. 1 TO
AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT
February 27, 2020
AMENDMENT NO. 1 TO AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT
AMENDMENT NO. 1, dated as of the 27th day of February, 2020 (the “Amendment No. 1”), by and among Spirit Realty Capital, Inc., a Maryland corporation (the “Company”), Spirit Realty, L.P., a Delaware limited partnership (the “Operating Partnership”), SunTrust Xxxxxxxx Xxxxxxxx, Inc., BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated and Xxxxx Fargo Securities, LLC, as sales agents (each, a “Manager” and, collectively, the “Managers”) and Bank of America, N.A., The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Xxxxxx Xxxxxxx & Co. LLC, Royal Bank of Canada and Xxxxx Fargo Bank, National Association, as forward purchasers (each, a “Forward Purchaser and, collectively, the “Forward Purchasers”), to that certain Amended and Restated Equity Distribution Agreement, dated February 22, 2019 (the “Agreement”).
W I T N E S S E T H:
WHEREAS, the Company, the Operating Partnership, SunTrust Xxxxxxxx Xxxxxxxx, Inc., X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, RBC Capital Markets, LLC, Scotia Capital (USA) Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxx Fargo Securities, LLC, The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Royal Bank of Canada and Xxxxx Fargo Bank, National Association are parties to the Agreement (the “Original Parties’);
WHEREAS, the Original Parties wish to amend the Agreement to modify the definition of certain defined terms set forth in the Agreement and used therein, and BTIG, LLC, Bank of America, N.A., BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., Mizuho Markets Americas LLC, Xxxxxx Xxxxxxx & Co. LLC and Regions Securities LLC wish to become parties to the Agreement, in each case with effect on and after February 27, 2020 (the “Effective Date”); and
WHEREAS, this Amendment No. 1 shall constitute an amendment to the Agreement, which shall remain in full force and effect as amended by this Amendment.
NOW, THEREFORE, in consideration of the mutual agreement to amend the Agreement, the parties hereto, intending legally to be bound, hereby amend and modify the Agreement as of the date hereof as follows:
Section 1. Definitions. Unless otherwise specified herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.
Section 2. Representation and Warranty. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to the Managers and the Forward Purchasers that this Amendment No. 1 has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company and the Operating Partnership.
1
Section 3. Amendment of the Agreement.
(a) On and after the Effective Date, the references to “Prospectus Supplement” shall refer to 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.
(b) On and after the Effective Date, the references to “Manager” and “Managers” shall refer to each of SunTrust Xxxxxxxx Xxxxxxxx, Inc., BTIG, LLC, BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated and Xxxxx Fargo Securities, LLC.
(c) On and after the Effective Date, the references to “Forward Purchaser” and “Forward Purchasers” shall refer to each of Bank of America, N.A., The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Xxxxxx Xxxxxxx & Co. LLC, Royal Bank of Canada and Xxxxx Fargo Bank, National Association.
(d) Section 15 of the Agreement is amended to replace the notice party information for JPMorgan Chase Bank, National Association with the following:
“if to JPMorgan Chase Bank, National Association shall be delivered, mailed or sent to JPMorgan Chase Bank, National Association, New York Branch, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: EDG Marketing Support, E-mail: xxx_xxxxxxx@xxxxxxxx.xxx and xxx_xx_xxxxxxxxx_xxxxx_xxxxxxx@xxxxxxxx.xxx, with a copy to Attention: Xxxxxxxxx Xxxxxx, Email: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx;”
(e) Section 15 of the Agreement is amended to replace the notice party information for Mizuho Securities USA LLC with the following:
“if to Mizuho Securities USA LLC or Mizuho Markets Americas LLC shall be delivered, mailed or sent to Mizuho Securities USA LLC, 1271 Avenue of the Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, E-mail: XX-XXX@xxxxxxxxxxx.xxx, Attention: Equity Capital Markets;”
(f) Section 15 of the Agreement is amended to replace the notice party information for Xxxxx Fargo Securities, LLC and Xxxxx Fargo Bank, National Association with the following:
“if to Xxxxx Fargo Securities, LLC shall be delivered, mailed or sent to Xxxxx Fargo Securities, LLC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Department, fax no: (000) 000-0000, or if to Xxxxx Fargo Bank, National Association shall be delivered, mailed or sent to Xxxxx Fargo Bank, National Association,
2
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structuring Services Group, fax no. (000) 000-0000, with a copy to XxxxxxxxxXxxxxxxxxxXxxxxxxxxxxxx@xxxxxxxxxx.xxx;”
(g) Section 15 of the Agreement is amended to add the following notice party information:
“if to BTIG, LLC shall be delivered, mailed or sent to BTIG, LLC, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ATM Trading Desk, email: XXXXXXXXXXxxxxxx@xxxx.xxx;”
“if to BofA Securities, Inc. or Bank of America, N.A. shall be delivered, mailed or sent to BofA Securities, Inc., Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ATM Execution Team (xx.xxx_xxxxxxxxx@xxxx.xxx), with a copy to Xxxxx Xxxxx (xxxxx.xxxxx@xxxx.xxx) and Xxxxxx Xxxxxxx (xxxxxxxx0@xxxx.xxx);”
“if to Capital One Securities, Inc. shall be delivered, mailed or sent to Capital One Securities, Inc., 000 Xx. Xxxxxxx Xxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxxxx Xxxxxxx (Xxxxxxxxx.Xxxxxxx@xxxxxxxxxx.xxx);”
“if to Fifth Third Securities, Inc. shall be delivered, mailed or sent to Fifth Third Securities, Inc., 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Equity Trading Desk, with a copy to Fifth Third Legal Department, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx 00000X, Xxxxxxxxxx, Xxxx 00000, Attention Xxxxxxx Xxxxxxx;”
“if to Regions Securities LLC shall be delivered, mailed or sent to Regions Securities LLC, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx Xxxxxxxx (xxxx.xxxxxxxx@xxxxxxx.xxx) and Xx Xxxxxxxxx (xx.xxxxxxxxx@xxxxxxx.xxx);”
“if to Xxxxxx Xxxxxxx & Co. LLC shall be delivered, mailed or sent to Xxxxxx Xxxxxxx & Co. LLC, 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a copy to the Legal Department;”
(h) The first paragraph of Exhibit A of the Agreement is amended as follows:
“This Notification sets forth the terms of the agreement of [NAME OF MANAGER] (the “Manager”) with Spirit Realty Capital, Inc. (the “Company”) and Spirit Realty, L.P. relating to the sale of shares of the Company’s common stock, $0.05 par value per share, having an aggregate gross sales price of up to $500,000,000, pursuant to the amended and restated equity distribution agreement between the Company, Spirit Realty, L.P., SunTrust Xxxxxxxx Xxxxxxxx, Inc., BTIG, LLC, Bank of America, N.A., BofA Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc., X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxxx Fargo Securities, LLC, The Bank of Nova Scotia, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Royal
3
Bank of Canada and Xxxxx Fargo Bank, National Association dated February 22, 2019 (the “Agreement”). Unless otherwise defined below, capitalized terms defined in the Agreement shall have the same meanings when used herein.”
(i) Notwithstanding anything to the contrary contained herein, this Amendment No. 1 shall not have any effect on offerings or sales of 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 “Prospectus Supplement,” “Manager” and “Forward Purchaser,” contained in the Agreement prior to the Effective Date.
Section 4. Applicable Law. This Amendment No. 1 and any claim, controversy or dispute arising under or related to this Amendment No. 1 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.
Section 5. Entire Agreement. The Agreement, as amended by this Amendment No. 1, represents the entire agreement between the Company, the Operating Partnership, each Manager and each Forward Purchaser with respect to the preparation of any Registration Statement, Prospectus Supplement or the Prospectus, the conduct of the offering and the sale and distribution of the Shares.
Section 6. Execution in Counterparts. This Amendment No. 1 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.
[SIGNATURE PAGES FOLLOW]
4
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Managers, the Forward Purchasers and the Company in accordance with its terms.
| Very truly yours,
Spirit Realty Capital, Inc. | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Executive Vice President and Chief Financial Officer | |
|
By: Spirit General OP Holdings, LLC, its general partner | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Executive Vice President and Chief Financial Officer | |
[Spirit Realty EDA Amendment - Company Signature Page]
Accepted as of the date first written above
| By: | SunTrust Xxxxxxxx Xxxxxxxx, Inc. | |
| By: | /s/ Xxxx X. X. Xxxxxxxx XX | |
| Name: | Xxxx X. X. Xxxxxxxx XX | |
| Title: | Managing Director | |
| By: | BTIG, LLC | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Managing Director | |
| By: | BofA Securities, Inc. | |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Managing Director, Investment Banking | |
| By: | Capital One Securities, Inc. | |
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Managing Director | |
| By: | Fifth Third Securities, Inc. | |
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Managing Director, ECM | |
[Spirit Realty EDA Amendment – Manager Signature Page]
| By: | X.X. Xxxxxx Securities LLC | |
| By: | /s/ Xxxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxxx Xxxxxx | |
| Title: | Executive Director | |
| By: | Mizuho Securities USA LLC | |
| By: | /s/ Xxxxxxx FX Xxxxx | |
| Name: | Xxxxxxx FX Xxxxx | |
| Title: | Managing Director | |
| By: | Xxxxxx Xxxxxxx & Co. LLC | |
| By: | /s/ Xxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Executive Director | |
| By: | RBC Capital Markets, LLC | |
| By: | /s/ Xxxxxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxxxxx Xxxxxx | |
| Title: | Managing Director | |
| By: | Regions Securities LLC | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Managing Director | |
[Spirit Realty EDA Amendment – Manager Signature Page]
| By: | Scotia Capital (USA) Inc. | |
| By: | /s/ Xxxx Xxxxxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxxxxx | |
| Title: | Managing Director | |
| By: | Xxxxxx, Xxxxxxxx & Company, Incorporated | |
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | |
| Title: | Managing Director | |
| By: | Xxxxx Fargo Securities, LLC | |
| By: | /s/ Xxxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
As Managers
[Spirit Realty EDA Amendment – Manager Signature Page]
Accepted as of the date first written above
| By: | Bank of America, N.A. | |
| By: | /s/ Xxxx Xxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxx | |
| Title: | Managing Director | |
| By: | The Bank of Nova Scotia | |
| By: | /s/ Xxxx Xxxxxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxxxxx | |
| Title: | Managing Director | |
| By: | JPMorgan Chase Bank, National Association | |
| By: | /s/ Xxxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxxx Xxxxxx | |
| Title: | Executive Director | |
| By: | Mizuho Markets Americas LLC | |
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Attorney-in-Fact | |
| By: | Xxxxxx Xxxxxxx & Co. LLC | |
| By: | /s/ Xxx Xxxxxxx | |
| Name: | Xxx Xxxxxxx | |
| Title: | Executive Director | |
[Spirit Realty EDA Amendment – Forward Purchaser Signature Page]
| By: | Royal Bank of Canada | |
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Managing Director | |
| By: | Xxxxx Fargo Bank, National Association | |
| By: | /s/ Xxxxx XxXxxxxxx | |
| Name: | Xxxxx XxXxxxxxx | |
| Title: | Managing Director | |
As Forward Purchasers
[Spirit Realty EDA Amendment – Forward Purchaser Signature Page]
