UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 28, 2018

 

 

MID-AMERICA APARTMENT COMMUNITIES, INC.

(Exact name of registrant as specified in its charter)

 

 

 

TENNESSEE   001-12762   62-1543819
(State or Other Jurisdiction
of incorporation) 		  (Commission
File Number) 		  (I.R.S. Employer
Identification No.)

 

 

MID-AMERICA APARTMENTS, L.P.

(Exact name of registrant as specified in its charter)

 

 

 

TENNESSEE   333-190028-01   62-1543816
(State or Other Jurisdiction
of incorporation) 		  (Commission
File Number) 		  (I.R.S. Employer
Identification No.)

 

6815 Poplar Avenue, Suite 500
Germantown, Tennessee 		  38138
(Address of Principal Executive Offices)   (Zip Code)

(901) 682-6600

(Registrant’s telephone number, including area code)

N/A

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐

Pre-commencement communications pursuant to Rule 13 e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 

ITEM 1.01

Entry into Material Definitive Agreement.

As previously reported, on December 9, 2015, Mid-America Apartment Communities, Inc. (the “Company”) and Mid-America Apartments, L.P. (the “Operating Partnership”) entered into separate Distribution Agreements (collectively, the “Base Agreements”) with each of J.P. Morgan Securities LLC, BMO Capital Markets Corp. and KeyBanc Capital Markets Inc. (the “Agents”) for the purpose of selling shares of the Company’s common stock, par value $0.01 per share, in at-the-market offerings or negotiated transactions. In accordance with the terms of the Base Agreements, the Company may issue and sell up to 4,000,000 shares of its common stock (the “Shares”), from time to time, through the Agents, as sales agents, or directly to the Agents, acting as principal. The Shares were to be offered pursuant to a shelf registration statement jointly filed by the Company and the Operating Partnership with the Securities and Exchange Commission on December 9, 2015 (File Nos. 333-208398 and 333-208398-01), and a related prospectus supplement dated December 9, 2015.

On September 27, 2018, the Company and the Operating Partnership jointly filed a new registration statement (the “New Shelf”) on Form S-3 (File Nos. 333-227553 and 333-227553-01) with the Securities and Exchange Commission.

On September 28, 2018, the Company, the Operating Partnership and the respective Agents entered into separate Amendment No. 1s to each of the Base Agreements (collectively, the “Amendments”), which modify certain defined terms in each Base Agreement to properly reflect and reference the New Shelf and the prospectus filed as part of the New Shelf, and extend the outside date of the term of each Base Agreement until September 28, 2021, unless otherwise terminated in accordance with the respective Base Agreement.

The Shares will be offered pursuant to the New Shelf and a new prospectus supplement filed by the Company with the Securities and Exchange Commission on September 28, 2018.

This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any of the Shares.

The foregoing description of the Base Agreements and Amendments are qualified in their entirety by the full text of the Base Agreements and Amendments, which are being filed as Exhibits 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6 to this Current Report on Form 8-K and are incorporated herein by reference.

 

ITEM 9.01

Financial Statements and Exhibits.

 

Exhibit
Number

  

Exhibit Description

1.1    Distribution Agreement, dated December  9, 2015, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P. and J.P. Morgan Securities LLC (filed as Exhibit 1.1 to the Registrant’s Current Report on Form 8-K filed on December 9, 2015, and incorporated herein by reference).
1.2    Distribution Agreement, dated December  9, 2015, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P. and BMO Capital Markets Corp. (filed as Exhibit 1.2 to the Registrant’s Current Report on Form 8-K filed on December 9, 2015, and incorporated herein by reference).
1.3    Distribution Agreement, dated December  9, 2015, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P. and KeyBanc Capital Markets Inc. (filed as Exhibit 1.3 to the Registrant’s Current Report on Form 8-K filed on December 9, 2015, and incorporated herein by reference).
1.4    Amendment No. 1 to Distribution Agreement, dated September  28, 2018, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P. and J.P. Morgan Securities LLC.
1.5    Amendment No. 1 to Distribution Agreement, dated September  28, 2018, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P. and BMO Capital Markets Corp.
1.6    Amendment No. 1 to Distribution Agreement, dated September  28, 2018, by and among Mid-America Apartment Communities, Inc., Mid-America Apartments, L.P. and KeyBanc Capital Markets Inc.
5.1    Opinion of Bass, Berry & Sims PLC.
23.1    Consent of Bass Berry & Sims PLC (included in Exhibit 5.1).

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    MID-AMERICA APARTMENT COMMUNITIES, INC.
Date:   September 28, 2018  

/s/ Albert M. Campbell, III

    Albert M. Campbell, III
    Executive Vice President and Chief Financial Officer
    (Principal Financial Officer)

 

    MID-AMERICA APARTMENTS, L.P.
    By: Mid-America Apartment Communities, Inc., its general partner
Date:   September 28, 2018  

/s/ Albert M. Campbell, III

    Albert M. Campbell, III
    Executive Vice President and Chief Financial Officer
    (Principal Financial Officer)

Exhibit 1.4

 

 

 

AMENDMENT NO. 1 TO

DISTRIBUTION AGREEMENT

DATED DECEMBER 9, 2015

among

MID-AMERICA APARTMENT COMMUNITIES, INC.,

MID-AMERICA APARTMENTS, L.P.

and

J.P. MORGAN SECURITIES LLC

Dated as of September 28, 2018

 

 

 

AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT

AMENDMENT NO. 1, dated as of the 28th day of September, 2018 (this “ Amendment No.  1 ”), by and among Mid-America Apartment Communities, Inc., a Tennessee corporation (the “ Company ”), Mid-America Apartments, L.P., a Tennessee limited partnership (the “ Operating Partnership ”), the sole general partner of which is the Company, and J.P. Morgan Securities LLC, as agent and/or principal (the “ Subject Agent ”) to that certain Distribution Agreement, dated December 9, 2015 (the “ Agreement ”).

W I T N E S S E T H:

WHEREAS, the parties hereto are parties to the Agreement;

WHEREAS, the Company, the Operating Partnership and the Subject Agent wish to amend the Agreement to modify the definition of certain defined terms set forth in the Agreement and used therein and for certain other administrative matters, with effect on and after September 28, 2018 (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 No. 1.

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 .

(a)    Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to the Subject Agent 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.

Section 3.     Amendment of the Agreement .

(a)    On and after the Effective Date, the references to “ Registration Statement ” shall refer to the registration statement on Form S-3 (File No. 333-227553) filed by the Company and the Operating Partnership with the Securities and Exchange Commission (the “ Commission ”) on September 27, 2018, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Subject Agent, including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein and (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the effective time.

(b)    On and after the Effective Date, the references to: (i) “ Basic Prospectus ” shall mean the prospectus dated September 27, 2018, filed as part of the Registration Statement, including the documents incorporated by reference therein as of the date of such prospectus; (ii) “ Prospectus Supplement ” shall mean the most recent prospectus supplement relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of its first use in connection with a public offering or sale of Shares pursuant hereto (or such earlier time as may be required under the Act), in the form furnished by the Company to the Subject Agent in connection with the offering of the Shares; and (iii) “ Prospectus ” shall mean the Prospectus Supplement (and any additional prospectus supplement prepared in accordance with the provision of Section 4(h) of this Agreement and filed in accordance with the provisions of Rule 424(b)) together with the Basic Prospectus attached to or used with the Prospectus Supplement.

(c)    On and after the Effective Date, all references in the Agreement to “Baker, Donelson, Bearman, Caldwell & Berkowitz, PC” shall be replaced with “Bass, Berry & Sims PLC.”

(d)    On and after the Effective Date, Section 8(c) of the Agreement is hereby amended by deleting such section in its entirety and substituting therefor the following:

“(c) This Agreement shall remain in full force and effect until the earliest of (A) termination of the Agreement pursuant to Section 8(a) or 8(b) above or otherwise by mutual written agreement of the parties, (B) such date that the Maximum Number of Shares has been sold in accordance with the terms of the Distribution Agreements and any Terms Agreements and Alternative Terms Agreements and (C) September 28, 2021 (the “ Third Anniversary Date ”), in each case except that the provisions of Section 3, 4 (except that if no Shares have been previously sold hereunder or under any Terms Agreement, only Section 4(m)), 9, 13, 14 and 17 of this Agreement shall remain in full force and effect notwithstanding such termination.”

(e)    On and after the Effective Date, Section 10 of the Agreement is hereby amended by deleting such section in its entirely and substituting therefor for the following:

“10. Notices . All notices and other communications under this Agreement and any Terms Agreement shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of communication, and, if to the Subject Agent, shall be sufficient in all respects if delivered or sent to J.P. Morgan Securities LLC, 383 Madison Avenue, 6th Floor, New York, New York 10179, Attention: Corporate Equity Derivatives, Stephanie Little (email stephanie.y.little@jpmorgan.com), Felipe Concha (email felipe.concha@jpmorgan.com) and Marlee Burr (email marlee.k.burr@jpmorgan.com), and, if to the Company or the Operating Partnership, shall be sufficient in all respects if delivered or sent to it at Mid-America Apartment Communities, Inc., 6815 Poplar Avenue, Suite 500 Germantown, Tennessee 38138, Attn: Leslie B.C. Wolfgang (email leslie.wolfgang@maac.net). Notwithstanding the foregoing,

 

2

Transaction Proposals shall be delivered by the Company to the Subject Agent by telephone or email to Ara H. Movsesian (telephone number (212) 622-2619; email ara.movsesian@jpmorgan.com), Jemil D. Salih (telephone number (212) 622-2723; email jemil.d.salih@jpmorgan.com), Stephanie Little (email stephanie.y.little@jpmorgan.com), Felipe Concha (email felipe.concha@jpmorgan.com) and Marlee Burr (email marlee.k.burr@jpmorgan.com); and Transaction Acceptances shall be delivered by the Subject Agent to the Company by email to Leslie B.C. Wolfgang (email leslie.wolfgang@maac.net).

The Subject Agent hereby notifies the Company that in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Subject Agent is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow the Subject Agent to properly identify its clients.”

(f)    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 “Registration Statement,” “Basic Prospectus,” “Prospectus Supplement” and “Prospectus,” contained in the Agreement.

Section 4.     Governing Law . THIS AMENDMENT NO. 1, AND ALL MATTERS ARISING OUT OF OR RELATING TO THIS AMENDMENT NO. 1, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS.

Section 5.     Entire Agreement . This Amendment No. 1 and the Agreement, as amended hereby, contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Except as amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects.

Section 6.     Execution in Counterparts . This Amendment No. 1 may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. This Agreement may be delivered by any party by facsimile or other electronic transmission. This Amendment No. 1 shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of the parties reflected hereon as the signatories.

 

3

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 Subject Agent, the Company and the Operating Partnership in accordance with its terms.

 

Very truly yours,
MID-AMERICA APARTMENT COMMUNITIES, INC.
By:  

/s/ Albert M. Campbell, III

  Name:   Albert M. Campbell, III
  Title:   Executive Vice President and Chief Financial Officer
MID-AMERICA APARTMENTS, L.P.
By:   Mid-America Apartment Communities, Inc.,
  Its General Partner
By:  

/s/ Albert M. Campbell, III

  Name:   Albert M. Campbell, III
  Title:   Executive Vice President and Chief Financial Officer

Accepted and agreed to as of the date first above written:
J.P. MORGAN SECURITIES LLC
By:  

/s/ Stephanie Y. Little

  Name: Stephanie Y. Little
  Title: Executive Director

Exhibit 1.5

 

 

 

AMENDMENT NO. 1 TO

DISTRIBUTION AGREEMENT

DATED DECEMBER 9, 2015

among

MID-AMERICA APARTMENT COMMUNITIES, INC.,

MID-AMERICA APARTMENTS, L.P.

and

BMO CAPITAL MARKETS CORP.

Dated as of September 28, 2018

 

 

 

AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT

AMENDMENT NO. 1, dated as of the 28th day of September, 2018 (this “ Amendment No.  1 ”), by and among Mid-America Apartment Communities, Inc., a Tennessee corporation (the “ Company ”), Mid-America Apartments, L.P., a Tennessee limited partnership (the “ Operating Partnership ”), the sole general partner of which is the Company, and BMO Capital Markets Corp., as agent and/or principal (the “ Subject Agent ”) to that certain Distribution Agreement, dated December 9, 2015 (the “ Agreement ”).

W I T N E S S E T H:

WHEREAS, the parties hereto are parties to the Agreement;

WHEREAS, the Company, the Operating Partnership and the Subject Agent wish to amend the Agreement to modify the definition of certain defined terms set forth in the Agreement and used therein and for certain other administrative matters, with effect on and after September 28, 2018 (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 No. 1.

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 .

(a)    Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to the Subject Agent 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.

Section 3.     Amendment of the Agreement .

(a)    On and after the Effective Date, the references to “ Registration Statement ” shall refer to the registration statement on Form S-3 (File No. 333-227553) filed by the Company and the Operating Partnership with the Securities and Exchange Commission (the “ Commission ”) on September 27, 2018, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Subject Agent, including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein and (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the effective time.

(b)    On and after the Effective Date, the references to: (i) “ Basic Prospectus ” shall mean the prospectus dated September 27, 2018, filed as part of the Registration Statement, including the documents incorporated by reference therein as of the date of such prospectus; (ii) “ Prospectus Supplement ” shall mean the most recent prospectus supplement relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of its first use in connection with a public offering or sale of Shares pursuant hereto (or such earlier time as may be required under the Act), in the form furnished by the Company to the Subject Agent in connection with the offering of the Shares; and (iii) “ Prospectus ” shall mean the Prospectus Supplement (and any additional prospectus supplement prepared in accordance with the provision of Section 4(h) of this Agreement and filed in accordance with the provisions of Rule 424(b)) together with the Basic Prospectus attached to or used with the Prospectus Supplement.

(c)    On and after the Effective Date, all references in the Agreement to “Baker, Donelson, Bearman, Caldwell & Berkowitz, PC” shall be replaced with “Bass, Berry & Sims PLC.”

(d)    On and after the Effective Date, Section 8(c) of the Agreement is hereby amended by deleting such section in its entirety and substituting therefor the following:

“(c) This Agreement shall remain in full force and effect until the earliest of (A) termination of the Agreement pursuant to Section 8(a) or 8(b) above or otherwise by mutual written agreement of the parties, (B) such date that the Maximum Number of Shares has been sold in accordance with the terms of the Distribution Agreements and any Terms Agreements and Alternative Terms Agreements and (C) September 28, 2021 (the “ Third Anniversary Date ”), in each case except that the provisions of Section 3, 4 (except that if no Shares have been previously sold hereunder or under any Terms Agreement, only Section 4(m)), 9, 13, 14 and 17 of this Agreement shall remain in full force and effect notwithstanding such termination.”

(e)    On and after the Effective Date, Section 10 of the Agreement is hereby amended by deleting such section in its entirely and substituting therefor for the following:

“10. Notices . All notices and other communications under this Agreement and any Terms Agreement shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of communication, and, if to the Subject Agent, shall be sufficient in all respects if delivered or sent to BMO Capital Markets Corp., 3 Times Square, 25 th Floor, New York, New York 10036, Attention: Syndicate Department (telephone number (800) 414-3627), and, if to the Company or the Operating Partnership, shall be sufficient in all respects if delivered or sent to it at Mid-America Apartment Communities, Inc., 6815 Poplar Avenue, Suite 500 Germantown, Tennessee 38138, Attn: Leslie B.C. Wolfgang (email leslie.wolfgang@maac.net). Notwithstanding the foregoing, Transaction Proposals shall be delivered by the Company to the Subject Agent by email to Daniel Rusbarsky (email daniel.rusbarsky@bmo.com),

 

2

Eric Dobi (email eric.dobi@bmo.com), Mehran Feyz (email mehran.feyz@bmo.com), Eric Benedict (email eric.benedict@bmo.com), Jaryd Banach (email jaryd.banach@bmo.com); and Transaction Acceptances shall be delivered by the Subject Agent to the Company by email to Leslie B.C. Wolfgang (email leslie.wolfgang@maac.net).

The Subject Agent hereby notifies the Company that in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Subject Agent is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow the Subject Agent to properly identify its clients.”

(f)    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 “Registration Statement,” “Basic Prospectus,” “Prospectus Supplement” and “Prospectus,” contained in the Agreement.

Section 4.     Governing Law . THIS AMENDMENT NO. 1, AND ALL MATTERS ARISING OUT OF OR RELATING TO THIS AMENDMENT NO. 1, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS.

Section 5.     Entire Agreement . This Amendment No. 1 and the Agreement, as amended hereby, contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Except as amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects.

Section 6.     Execution in Counterparts . This Amendment No. 1 may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. This Agreement may be delivered by any party by facsimile or other electronic transmission. This Amendment No. 1 shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of the parties reflected hereon as the signatories.

 

3

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 Subject Agent, the Company and the Operating Partnership in accordance with its terms.

 

Very truly yours,
MID-AMERICA APARTMENT COMMUNITIES, INC.
By:  

/s/ Albert M. Campbell, III

  Name:   Albert M. Campbell, III
  Title:   Executive Vice President and Chief Financial Officer
MID-AMERICA APARTMENTS, L.P.
By:   Mid-America Apartment Communities, Inc.,
  Its General Partner
By:  

/s/ Albert M. Campbell, III

  Name:   Albert M. Campbell, III
  Title:   Executive Vice President and Chief Financial Officer

Accepted and agreed to as of the date first above written:
BMO CAPITAL MARKETS CORP.
By:  

/s/ Eric Dobi

  Name: Eric Dobi
  Title: Managing Director

Exhibit 1.6

 

 

 

AMENDMENT NO. 1 TO

DISTRIBUTION AGREEMENT

DATED DECEMBER 9, 2015

among

MID-AMERICA APARTMENT COMMUNITIES, INC.,

MID-AMERICA APARTMENTS, L.P.

and

KEYBANC CAPITAL MARKETS INC.

Dated as of September 28, 2018

 

 

 

AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT

AMENDMENT NO. 1, dated as of the 28th day of September, 2018 (this “ Amendment No.  1 ”), by and among Mid-America Apartment Communities, Inc., a Tennessee corporation (the “ Company ”), Mid-America Apartments, L.P., a Tennessee limited partnership (the “ Operating Partnership ”), the sole general partner of which is the Company, and KeyBanc Capital Markets Inc., as agent and/or principal (the “ Subject Agent ”) to that certain Distribution Agreement, dated December 9, 2015 (the “ Agreement ”).

W I T N E S S E T H:

WHEREAS, the parties hereto are parties to the Agreement;

WHEREAS, the Company, the Operating Partnership and the Subject Agent wish to amend the Agreement to modify the definition of certain defined terms set forth in the Agreement and used therein and for certain other administrative matters, with effect on and after September 28, 2018 (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 No. 1.

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 .

(a)    Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to the Subject Agent 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.

Section 3.     Amendment of the Agreement .

(a)    On and after the Effective Date, the references to “ Registration Statement ” shall refer to the registration statement on Form S-3 (File No. 333-227553) filed by the Company and the Operating Partnership with the Securities and Exchange Commission (the “ Commission ”) on September 27, 2018, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Subject Agent, including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein and (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the effective time.

(b)    On and after the Effective Date, the references to: (i) “ Basic Prospectus ” shall mean the prospectus dated September 27, 2018, filed as part of the Registration Statement, including the documents incorporated by reference therein as of the date of such prospectus; (ii) “ Prospectus Supplement ” shall mean the most recent prospectus supplement relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of its first use in connection with a public offering or sale of Shares pursuant hereto (or such earlier time as may be required under the Act), in the form furnished by the Company to the Subject Agent in connection with the offering of the Shares; and (iii) “ Prospectus ” shall mean the Prospectus Supplement (and any additional prospectus supplement prepared in accordance with the provision of Section 4(h) of this Agreement and filed in accordance with the provisions of Rule 424(b)) together with the Basic Prospectus attached to or used with the Prospectus Supplement.

(c)    On and after the Effective Date, all references in the Agreement to “Baker, Donelson, Bearman, Caldwell & Berkowitz, PC” shall be replaced with “Bass, Berry & Sims PLC.”

(d)    On and after the Effective Date, Section 8(c) of the Agreement is hereby amended by deleting such section in its entirety and substituting therefor the following:

“(c) This Agreement shall remain in full force and effect until the earliest of (A) termination of the Agreement pursuant to Section 8(a) or 8(b) above or otherwise by mutual written agreement of the parties, (B) such date that the Maximum Number of Shares has been sold in accordance with the terms of the Distribution Agreements and any Terms Agreements and Alternative Terms Agreements and (C) September 28, 2021 (the “ Third Anniversary Date ”), in each case except that the provisions of Section 3, 4 (except that if no Shares have been previously sold hereunder or under any Terms Agreement, only Section 4(m)), 9, 13, 14 and 17 of this Agreement shall remain in full force and effect notwithstanding such termination.”

(e)    On and after the Effective Date, Section 10 of the Agreement is hereby amended by deleting such section in its entirely and substituting therefor for the following:

“10. Notices . All notices and other communications under this Agreement and any Terms Agreement shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of communication, and, if to the Subject Agent, shall be sufficient in all respects if delivered or sent to KeyBanc Capital Markets Inc., Attention: Equity Syndicate, 127 Public Square, 4th Floor, Cleveland, Ohio 44114, and, if to the Company or the Operating Partnership, shall be sufficient in all respects if delivered or sent to it at Mid-America Apartment Communities, Inc., 6815 Poplar Avenue, Suite 500 Germantown, Tennessee 38138, Attn: Leslie B.C. Wolfgang (email leslie.wolfgang@maac.net). Notwithstanding the foregoing, Transaction Proposals shall be delivered by the Company to the Subject Agent by telephone (telephone number (216) 689-3910)

 

2

or email to David Gruber (email dgruber@key.com), Michael Hawkins (email michael.hawkins@key.com), Paul Hodermarsky (email phodermarsky@key.com), and Michael Jones (email michael.c.jones@key.com); and Transaction Acceptances shall be delivered by the Subject Agent to the Company by email to Leslie B.C. Wolfgang (email leslie.wolfgang@maac.net).

The Subject Agent hereby notifies the Company that in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Subject Agent is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow the Subject Agent to properly identify its clients.”

(f)    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 “Registration Statement,” “Basic Prospectus,” “Prospectus Supplement” and “Prospectus,” contained in the Agreement.

Section 4.     Governing Law . THIS AMENDMENT NO. 1, AND ALL MATTERS ARISING OUT OF OR RELATING TO THIS AMENDMENT NO. 1, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS.

Section 5.     Entire Agreement . This Amendment No. 1 and the Agreement, as amended hereby, contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Except as amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects.

Section 6.     Execution in Counterparts . This Amendment No. 1 may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. This Agreement may be delivered by any party by facsimile or other electronic transmission. This Amendment No. 1 shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of the parties reflected hereon as the signatories.

 

3

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 Subject Agent, the Company and the Operating Partnership in accordance with its terms.

 

Very truly yours,
MID-AMERICA APARTMENT COMMUNITIES, INC.
By:  

/s/ Albert M. Campbell, III

  Name:   Albert M. Campbell, III
  Title:   Executive Vice President and Chief Financial Officer
MID-AMERICA APARTMENTS, L.P.
By:   Mid-America Apartment Communities, Inc.,
  Its General Partner
By:  

/s/ Albert M. Campbell, III

  Name:   Albert M. Campbell, III
  Title:   Executive Vice President and Chief Financial Officer

Accepted and agreed to as of the date first above written:
KEYBANC CAPITAL MARKETS INC.
By:  

/s/ Paul Hodermarsky

  Name: Paul Hodermarsky
  Title: Managing Director

Exhibit 5.1

 

LOGO

The Tower at Peabody Place

100 Peabody Place, Suite 1300

Memphis, TN 38103-3672

(901) 543-5900

September 28, 2018

Mid-America Apartment Communities, Inc.

6815 Poplar Avenue, Suite 500

Germantown, TN 38138

 

  Re:

Mid-America Apartment Communities, Inc.’s At-The-Market Offering Program

Ladies and Gentlemen:

We have acted as counsel to Mid-America Apartment Communities, Inc., a Tennessee corporation (the “ Company ”), and Mid-America Apartments, L.P., a Tennessee limited partnership (the “ Operating Partnership ”), in connection with the offering of up to 4,000,000 shares (the “ Shares ”) of the Company’s common stock, par value $0.01 per share, which Shares are to be offered and sold by the Company from time to time in accordance with the terms of separate distribution agreements entered into by the Company and the Operating Partnership on December 9, 2015 with each of J.P. Morgan Securities LLC, BMO Capital Markets Corp. and KeyBanc Capital Markets Inc. (collectively, the “ Base Agreements ”), each as amended by separate Amendment No. 1s to the Base Agreements dated as of September 28, 2018 (collectively, the “ Amendments ”), and as described in the prospectus supplement dated as of September 28, 2018 (the “ Prospectus Supplement ”) and the accompanying prospectus dated September 27, 2018 (such documents, collectively, the “ Prospectus ”) that form part of the Company’s and the Operating Partnership’s effective registration statement on Form S-3, as amended (Registration No. 333-227553 and Registration No. 333-227553-01) (the “ Registration Statement ”), filed with the Securities and Exchange Commission (“ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus, other than as expressly stated herein.

We have examined the Registration Statement, the Prospectus, the Base Agreements and the Amendments. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents and other instruments as we have deemed relevant and necessary in connection with the opinion hereinafter set forth. As to questions of fact material to this opinion, we have relied, without independent verification or investigation, upon the representations and warranties made by the parties in the Base Agreements and the Amendments, and upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Operating Partnership.

In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.

September 28, 2018

Page 2

Based on the foregoing and the other matters set forth herein, it is our opinion that, when the Shares have been duly issued and sold as described in the Registration Statement, the Shares will be validly issued, fully paid and non-assessable.

Our opinion rendered in the above paragraph is subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws now or hereafter in effect relating to or affecting creditors’ rights and remedies generally; and (ii) the effect of general principles of equity (including, without limitation, laches and estoppel as equitable defenses, concepts of materiality, reasonableness, good faith and fair dealing, matters of public policy, the possible unavailability of specific performance, injunctive relief and other equitable remedies, the discretion of the court before which a proceeding is brought, and considerations of impracticability or impossibility of performance and defenses based upon unconscionability), regardless of whether considered in a proceeding at law or in equity.

Our opinion as set forth herein is limited to the laws of the State of Tennessee. No opinion is given regarding the laws of any other jurisdiction.

This letter speaks as of the date hereof. We disclaim any obligation to provide any subsequent opinion or advice by reason of any future changes or events which may affect or alter any opinion rendered herein. Our opinion is limited to the matters stated herein, and no opinion is to be implied or inferred beyond the matters stated herein.

We hereby consent to the filing of this opinion as an exhibit to the Company’s and Operating Partnership’s Current Report on Form 8-K dated as of September 28, 2018 and to the reference to this firm under the caption “Legal Matters” in the Prospectus constituting a part of the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the Commission’s rules and regulations thereunder.

 

Very truly yours,
/s/ Bass, Berry & Sims PLC