1,000,000 Shares* MID-AMERICA APARTMENT COMMUNITIES, INC. Common Stock UNDERWRITING AGREEMENT
1,000,000
Shares*
MID-AMERICA
APARTMENT COMMUNITIES, INC.
Common
Stock
UNDERWRITING
AGREEMENT
St.
Petersburg, Florida
May
9,
2006
Xxxxxxx
Xxxxx & Associates, Inc.
000
Xxxxxxxx Xxxxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Ladies
and Gentlemen:
Mid-America
Apartment Communities, Inc., a Tennessee corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to Xxxxxxx
Xxxxx & Associates, Inc., acting as the sole underwriter (the
“Underwriter”), an aggregate of 1,000,000 shares (the “Firm Shares”) of its
Common Stock, par value $.01 per share (the “Common Stock”). In addition, the
Company has agreed to sell to the Underwriter, upon the terms and conditions
stated herein, up to an additional 150,000 shares of Common Stock (the
“Additional Shares”) to cover over-allotments by the Underwriter, if any. The
Firm Shares and the Additional Shares are collectively referred to in this
Agreement as the “Shares.”
The
Company wishes to confirm as follows its agreement with the Underwriter in
connection with the Underwriter’s purchase of the Shares from the
Company.
1. Registration
Statement and Prospectus.
The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”), in conformity with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a Registration Statement (as defined
below) on Form S-3 (File No. 333-133834), including a base prospectus (the
“Base
Prospectus”), to be used in connection with the public offering and sale of
certain securities, including the Shares. The Registration Statement, including
the financial statements, exhibits and schedules thereto, became effective
upon
filing with the Commission pursuant to Rule 462(e) of the Securities Act. The
Company has filed such amendments to the Registration Statement and such
amendments or supplements to the related prospectus as may have been required
prior to the date hereof, and will file such additional amendments or
supplements as may hereafter be required. Copies of the Registration Statement,
including any amendments thereto and the exhibits, financial statements and
schedules thereto have been made available to you by the Company. A final
prospectus containing the information permitted to be omitted from the
Registration Statement by Rule 430A or Rule 430B of the Securities Act will
be
filed promptly by the Company with the Commission in accordance with Rule 424(b)
of the Securities Act. The term “Registration Statement” as used herein means
the registration statement on Form S-3 (File No. 333-133834), at the time such
registration statement became effective under Rule 462(e), or at the time any
part thereof is deemed effective under Rule 430B(f)(2) of the Securities Act
(the “Effective Date”), including the financial statements, all exhibits and all
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act and, if applicable, the information deemed to be
included by Rule 430A or Rule 430B of the Securities Act. The term “Prospectus”
as used herein means, together with the Base Prospectus, (i) the final
prospectus supplement relating to the specific offering of the Shares as first
filed by the Company with the Commission pursuant to Rule 424(b) of the
Securities Act (the “Prospectus Supplement”), or (ii) if no such filing is
required, the form of final prospectus included in the Registration Statement
at
the Effective Date, including in each case any information or documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act. The term “Preliminary Prospectus” as used herein shall mean a
preliminary prospectus as contemplated by Rule 430, Rule 430A or Rule 430B
of
the Securities Act included at any time in the Registration Statement, including
the Base Prospectus and any preliminary prospectus supplement relating to the
specific offering of the Shares, and including in each case the information
or
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act. The term “Free Writing Prospectus” as used herein
shall have the meaning set forth in Rule 405 of the Securities Act. The term
“Issuer Free Writing Prospectus” as used herein shall have the meaning set forth
in Rule 433 of the Securities Act. The term “Disclosure Package” as used herein
shall mean, as of the Initial Sale Time (as defined below), (i) the
Preliminary Prospectus, as most recently amended or supplemented prior to the
Initial Sale Time (as defined below), (ii) each Issuer
Free Writing Prospectus,
if any,
identified in Schedule II
hereto,
(iii) any other Free Writing Prospectus that the parties hereto shall hereafter
expressly agree to treat as part of the Disclosure Package and (iv) any other
information included in Schedule
II
hereto.
The “Initial Sale Time” as used herein shall mean 8:30 a.m., Eastern time, on
May 9, 2006 or such other time as agreed to in writing by the Underwriter and
the Company. The Preliminary Prospectus, any Issuer Free Writing Prospectus
required to be filed pursuant to Rule 433(d) of the Securities Act and the
Prospectus delivered to the Underwriter for use in connection with the offering
of the Shares have been and will be identical to the respective versions thereof
transmitted to the Commission for filing via the Electronic Data Gathering,
Analysis and Retrieval System (“XXXXX”), except to the extent permitted by
Regulation S-T.
For
purposes of this Agreement, the words “amend,” “amendment,” “amended,”
“supplement” or “supplemented” with respect to the Registration Statement, the
Preliminary Prospectus, the Prospectus, any Free Writing Prospectus or the
Disclosure Package shall mean amendments or supplements to the Registration
Statement, the Preliminary Prospectus, the Prospectus, any Free Writing
Prospectus or the Disclosure Package, as the case may be, as well as documents
filed after the date of this Agreement and prior to the completion of the
distribution of the Shares and incorporated by reference therein as described
above. As used herein, the term “Incorporated Documents” means the documents
which are incorporated by reference in the Registration Statement, the
Prospectus, or any amendment or supplement thereto during the period the
Prospectus is required to be delivered in connection with the sale of the Shares
by the Underwriter or any dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172(a) of the Securities Act
(the
“Prospectus Delivery Period”).
2. Agreements
to Sell and Purchase.
The
Company hereby agrees to issue and sell the Firm Shares to the Underwriter
and,
upon the basis of the representations, warranties and agreements of the Company
and Mid-America Apartments, L.P., a Tennessee limited partnership (the
“Partnership”) contained herein and subject to all the terms and conditions set
forth herein, the Underwriter agrees to purchase from the Company at a purchase
price of $51.713 per share (representing a public offering price of $52.50
per
share, less an underwriting discount of $0.787 per share) (the “Purchase Price”)
the number of Firm Shares set forth opposite the name of the Underwriter in
Schedule
I
hereto.
The
Company hereby also agrees to sell to the Underwriter, and, upon the basis
of
the representations, warranties and agreements of the Company and the
Partnership contained herein and subject to all the terms and conditions set
forth herein, the Underwriter shall have the right for 30 days from the date
of
this Agreement to purchase from the Company up to 150,000 Additional Shares
at
the Purchase Price. The Additional Shares may be purchased solely for the
purpose of covering over-allotments, if any, made in connection with the
offering of the Firm Shares. The option to purchase Additional Shares may be
exercised in whole or in part from time to time during the 30 days after the
date of this Agreement in one or more installments, but in no event more than
three installments.
3. Terms
of Public Offering.
The
Company has been advised by the Underwriter that the Underwriter proposes to
make a public offering of the Shares as soon after this Agreement has become
effective in the Underwriter’s judgment is advisable and to offer the Shares
initially upon the terms set forth in the Prospectus.
Not
later
than 2:00 p.m., Eastern time, on the business day following the date of the
Prospectus, the Company shall deliver or cause to be delivered copies of the
Prospectus in such quantities and at such places as the Underwriter shall
request.
4. Delivery of the Shares and Payment Therefor.
Delivery to the Underwriter of the Firm Shares and payment therefor shall be
made at the offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., Eastern time, on May 12, 2006
(the “Closing Date”). The place of closing for the Firm Shares and the Closing
Date may be varied by agreement between you and the Company. The Company hereby
acknowledges that circumstances under which you may provide notice to postpone
the Closing Date as originally scheduled include, but are not limited to, any
determination by the Company or the Underwriter to recirculate to the public
copies of an amended or supplemented Prospectus.
Delivery
to the Underwriter of and payment for any Additional Shares to be purchased
by
the Underwriter shall be made at the offices of Xxxxxxx Xxxxx & Associates,
Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., Eastern
time, on such date or dates (each, an “Additional Closing Date”) (which may be
the same as the Closing Date, but shall in no event be earlier than the Closing
Date nor earlier than three nor later than ten business days after the giving
of
the notice hereinafter referred to) as shall be specified in a written notice,
from the Underwriter to the Company, of the Underwriter’s determination to
purchase a number, specified in such notice, of Additional Shares. Such notice
may be given at any time within 30 days after the date of this Agreement and
must set forth the aggregate number of Additional Shares as to which the
Underwriter is exercising the option to purchase. The place of closing for
the
Additional Shares and any Additional Closing Date may be varied by agreement
between the Underwriter and the Company.
Certificates
for the Firm Shares and for any Additional Shares to be purchased hereunder
shall be registered in such names and in such denominations as you shall request
prior to 1:00 p.m., Eastern time, not later than the close of business on the
second full business day preceding the Closing Date or the Additional Closing
Date, as the case may be. Such certificates shall be made available to you
in
St. Petersburg, Florida for inspection and packaging not later than 9:30 a.m.,
Eastern time, on the business day immediately preceding the Closing Date or
the
Additional Closing Date, as the case may be. The certificates evidencing the
Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Additional Closing Date, as the
case
may be, against payment of the Purchase Price by wire transfer of immediately
available funds to an account specified in writing, not later than the close
of
business on the business day next preceding the Closing Date or the Additional
Closing Date, as the case may be, by the Company. Payment for the Shares sold
by
the Company hereunder shall be delivered by the Underwriter to the
Company.
It
is
understood that the Underwriter has been authorized to accept delivery of and
receipt for and make payment of the Purchase Price for the Firm Shares and
the
Additional Shares, if any, that the Underwriter has agreed to purchase in
accordance with this Agreement.
5. Covenants
and Agreements of the Company.
The
Company covenants and agrees with the Underwriter as follows:
(a) During
the Prospectus Delivery Period, the Company will comply with the requirements
of
Rule 430B of the Securities Act and will notify the Underwriter immediately,
and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission
for
any amendment to the Registration Statement or any amendment or supplement
to
the Prospectus or any document incorporated by reference therein or otherwise
deemed to be a part thereof or for additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
the
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
or
of the suspension of the qualification of the Shares for offering or sale in
any
jurisdiction, or of the initiation or threatening of any proceedings for any
of
such purposes or of any examination pursuant to Section 8(e) of the Securities
Act concerning the Registration Statement and (v) if the Company becomes the
subject of a proceeding under Section 8A of the Securities Act in connection
with the offering of the Shares. The Company will effect the filings required
under Rule 424(b) of the Securities Act, in the manner and within the time
period required by Rule 424(b) of the Securities Act (without reliance on Rule
424(b)(8) of the Securities Act), and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) of the Securities Act was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to use best efforts
to obtain the withdrawal of such order at the earliest possible time. The
Company shall pay the required Commission filing fees relating to the Shares
within the time required by Rule 456(b)(1)(i) of the Securities Act without
regard to the proviso therein and otherwise in accordance with Rules 456(b)
and
457(r) of the Securities Act (including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of
the Securities Act either in a post-effective amendment to the Registration
Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)
of
the Securities Act).
(b) The
Company will not file any amendment or supplement to the Registration Statement,
the Disclosure Package or the Prospectus (or any other prospectus relating
to
the Shares filed pursuant to Rule 424(b) of the Securities Act that differs
from
the Prospectus as filed pursuant to such Rule 424(b)) and will not file any
document under the Exchange Act before the termination of the offering of the
Shares by the Underwriter if the document would be deemed to be incorporated
by
reference into the Registration Statement, the Disclosure Package or the
Prospectus, of which the Underwriter shall not previously have been advised
and
furnished with a copy or to which the Underwriter shall have reasonably objected
or which is not in compliance with the Securities Act; and the Company will
promptly notify you after it shall have received notice thereof of the time
when
any amendment to the Registration Statement becomes effective or when any
supplement to, the Disclosure Package, the Prospectus has been
filed.
(c) The
Company has furnished or will on request deliver to the Underwriter and counsel
for the Underwriter, without charge, one signed copy of the Registration
Statement as initially filed by the Company with the Commission and of each
amendment thereto or otherwise deemed to be a part thereof and signed copies
of
all consents and certificates of experts. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) The
Company will furnish to the Underwriter, without charge, during the Prospectus
Delivery Period, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request. The Prospectus and
any
amendments or supplements thereto furnished to the Underwriter will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The
Company will comply with the Securities Act and the Exchange Act so as to permit
the completion of the distribution of the Shares as contemplated in this
Agreement and in the Prospectus. If at any time during the Prospectus Delivery
Period, any event shall occur or condition shall exist as a result of which
it
is necessary, in the opinion of counsel for the Underwriter or for the Company,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading, in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in
the
opinion of such counsel, at any such time to amend the Registration Statement
or
amend or supplement the Prospectus in order to comply with the requirements
of
the Securities Act or the Exchange Act, the Company will promptly notify the
Underwriter and, upon the Underwriter’s request, prepare and file with the
Commission, at the Company’s own expense, such amendment or supplement as may be
necessary to correct such statement or omission or to comply with such
requirements. The Company will use its best efforts to have such amendment
declared effective as soon as practicable and the Company will furnish to the
Underwriter such number of copies of such amendment or supplement as the
Underwriter may reasonably request. If at any time following the issuance of
an
Issuer Free Writing Prospectus until the distribution of the Shares by the
Underwriter is complete, there occurred or occurs an event or development as
a
result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement or the Prospectus
included or would include an untrue statement of a material fact or omitted
or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company will promptly notify the Underwriter and will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(f) The
Company agrees that, unless it obtains the prior written consent of the
Underwriter, it will not make any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a Free Writing Prospectus; provided that the prior written consent of the
Underwriter shall be deemed to have been given in respect of any Free Writing
Prospectuses included in Schedule
II
hereto.
Any such free writing prospectus consented to by the Underwriter is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that
(i) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied
and will comply, as the case may be, with the requirements of Rules 164 and
433
of the Securities Act as applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record
keeping.
(g) The
Company will cooperate with the Underwriter and counsel for the Underwriter
in
connection with the registration or qualification of the Shares for offering
and
sale by the several Underwriter and by dealers under the securities or Blue
Sky
laws of such jurisdictions as you may reasonably designate and will file such
consents to service of process or other documents as may be reasonably necessary
in order to effect and maintain such registration or qualification for so long
as required to complete the distribution of the Shares; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general service of process in suits, other than those arising
out
of the offering or sale of the Shares, as contemplated by this Agreement and
the
Prospectus, in any jurisdiction where it is not now so subject. In the event
that the qualification of the Shares in any jurisdiction is suspended, the
Company shall so advise you promptly in writing. The Company will use its best
efforts to qualify or register the Shares for sale in non-issuer transactions
under (or obtain exemptions from the application of) the Blue Sky laws of each
state where necessary to permit market making transactions and secondary trading
and will comply with such Blue Sky laws and will continue such qualifications,
registrations and exemptions in effect for a period of not less than five years
after the date hereof.
(h) The
Company will make generally available to its security holders a consolidated
earnings statement (in form complying with the provisions of Rule 158), which
need not be audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section 11(a)
of
the Securities Act.
(i) During
the period ending five years from the date hereof, the Company will furnish
to
you and, upon your request, to each of the other Underwriter, (i) as soon as
available, a copy of each proxy statement, quarterly or annual report or other
report of the Company mailed to stockholders or filed with the Commission,
the
National Association of Securities Dealers, Inc. (the “NASD”) or the New York
Stock Exchange, Inc. (the “NYSE”) or any national securities exchange and (ii)
such other information concerning the Company as you may reasonably request
from
time to time.
(j) If
this
Agreement shall terminate or shall be terminated after execution pursuant to
any
provision hereof (except pursuant to a termination under Section 11 hereof,
other than clauses (iv) or (v)) or if this Agreement shall be terminated by
the
Underwriter because of any inability, failure or refusal on the part of the
Company to perform in all material respects any agreement herein or to comply
in
all material respects with any of the terms or provisions hereof or to fulfill
in all material respects any of the conditions of this Agreement, the Company
agrees to reimburse the Underwriter for all out-of-pocket expenses (including
travel expenses and reasonable fees and expenses of counsel for the Underwriter,
but excluding wages and salaries paid by the Underwriter) reasonably incurred
by
the Underwriter in connection herewith.
(k) The
Company will apply the net proceeds from the sale of the Shares to be sold
by it
hereunder in accordance in all material respects with the statements under
the
caption “Use of Proceeds” in the Disclosure Package and the Prospectus. The
Company will effect the issuance to the Company by the Partnership of a number
of common units of partnership interest in the Partnership (the “Common Units”)
equal to the number of Shares upon the Company’s contribution to the Partnership
of the proceeds from the sale of the Shares.
(l) Prior
to
the Closing Date or the Additional Closing Date, as the case may be, the Company
will furnish to the Underwriter, as promptly as possible, copies of any
unaudited interim consolidated financial statements of the Company and its
subsidiaries for any period subsequent to the periods covered by the financial
statements incorporated by reference in the Prospectus.
(m) The
Company will comply with all provisions of any undertakings contained in the
Registration Statement.
(n) The
Company will not at any time, directly or indirectly, take any action designed
to or which might reasonably be expected to cause or result in, or which will
constitute, stabilization or manipulation of the price of the shares of Common
Stock to facilitate the sale or resale of any of the Shares.
(o) The
Company will timely file with the NYSE all documents and notices required by
the
NYSE of companies that have or will issue securities that are traded on the
NYSE.
(p) The
Company will use its best efforts to list the Shares on the NYSE.
(q) The
Company will use its best efforts (i) to continue to meet the requirements
to
qualify as a real estate investment trust under the Internal Revenue Code of
1986, as amended (the “Code”) for each of its taxable years, and (ii) to cause
each of its subsidiaries that is organized as a partnership to be treated as
a
partnership for federal income tax purposes.
(r) Except
as
provided in this Agreement, for a period of 60 days after the date of the
Prospectus filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act, without the Underwriter’s prior written consent, the
Company will not, directly or indirectly, issue, sell, offer or contract to
sell
or otherwise dispose of or transfer any shares of Common Stock or securities
convertible into or exchangeable or exercisable for shares of Common Stock
or
any rights to purchase Common Stock, or file any registration statement under
the Securities Act with respect to any of the foregoing; provided,
however,
that the
Company may issue and sell shares of Common Stock, or securities exercisable
for
Common Stock, pursuant to: (1) the Company’s 2004 Stock Plan; (2) the Company’s
Direct Stock Purchase and Dividend Reinvestment Plan; (3) upon the redemption
of
Common Units or Preferred Units (as defined below) in accordance with the Second
Amended and Restated Agreement of Limited Partnership of the Partnership, as
amended and supplemented; (4) upon the exercise of options or warrants
outstanding on the date hereof; (5) in connection with the acquisition by the
Company of properties or assets; or (6) the issuance of Common Units or
Preferred Units by the Partnership in connection with the acquisition of
properties or assets.
(s) The
Company acknowledges and agrees that (i) the purchase and sale of the
Shares pursuant to this Agreement, including the determination of the public
offering price of the Shares and any related discounts and commissions, is
an
arm’s-length commercial transaction between the Company, on the one hand, and
the Underwriter, on the other hand, (ii) in connection with the offering
contemplated by this Agreement and the process leading to such transaction,
the
Underwriter is and has been acting solely as principal and is not an agent
or
fiduciary of the Company, its securityholders, creditors, employees or any
other
party, (iii) the Underwriter has not assumed nor will it assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering
of the Shares contemplated by this Agreement or the process leading thereto
(irrespective of whether the Underwriter has advised or is currently advising
the Company on other matters) and the Underwriter has no obligation to the
Company or the Partnership with respect to the offering of the Shares
contemplated by this Agreement except the obligations expressly set forth in
this Agreement, (iv) the Underwriter and its affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of
the
Company and the Partnership, and (v) the Underwriter has not provided any
legal, accounting, regulatory or tax advice with respect to the offering
contemplated by this Agreement and the Company and the Partnership has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
6. Representations
and Warranties of the Company and the Partnership.
The
Company and the Partnership hereby represent and warrant to the Underwriter
on
the date hereof, and shall be deemed to represent and warrant to the Underwriter
on the Closing Date and the Additional Closing Date, as the case may be,
that:
(a) The
Company satisfies all of the requirements of the Securities Act for use of
Form
S-3 for the offering of the Shares contemplated hereby. At the time of the
initial filing of the Registration Statement, at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act
or
form of prospectus), at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the Securities
Act)
made any offer relating to the Shares in reliance on the exemption of Rule
163
of the Securities Act and at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405 of the Securities Act,
including not having been and not being an “ineligible issuer,” as defined in
Rule 405 of the Securities Act. The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405 of the Securities Act, and
the Shares, since their registration on the Registration Statement, have been
and remain eligible for registration by the Company on a Rule 405 “automatic
shelf registration statement.” The Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the
use
of the automatic shelf registration statement form.
(b) At
the
time of the initial filing of the Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2) of the Securities Act) of the Shares
and
at the date hereof, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405 of the Securities Act.
(c) The
Registration Statement became effective upon filing under Rule 462(e) of the
Securities Act on May 5, 2006, and any post-effective amendment thereto also
became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings for that purpose have been instituted or are pending
or,
to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
(d) Any
offer
that is a written communication relating to the Shares made prior to the initial
filing of the Registration Statement by the Company or any person acting on
its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the
Securities Act) has been filed with the Commission in accordance with the
exemption provided by Rule 163 of the Securities Act and otherwise complied
with
the requirements of Rule 163 of the Securities Act, including without limitation
the legending requirement.
(e) At
the
respective times the Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to the Underwriter
pursuant to Rule 430B(f)(2) of the Securities Act, at the Closing Date and
at
each Additional Closing Date, as the case may be, the Registration Statement
complied and will comply in all material respects with the requirements of
the
Securities Act, and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading. The
preceding sentence does not apply to statements in or omissions from the
Registration Statement or any amendment thereto in reliance upon and in
conformity with written information relating to any Underwriter furnished to
the
Company in writing by the Underwriter expressly for use therein, it being
understood and agreed that the only such information furnished by the
Underwriter consists of the information described as such in Section 12
hereof.
(f) Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued, at the Closing Date
and at each Additional Closing Date, as the case may be, included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Prospectus,
as
amended or supplemented, in reliance upon and in conformity with written
information relating to any Underwriter furnished to the Company in writing
by
the Underwriter expressly for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists of the
information described as such in Section 12 hereof.
(g) Each
Preliminary Prospectus complied when so filed in all material respects with
the
Securities Act and each Preliminary Prospectus and the Prospectus, as amended
or
supplemented, delivered to the Underwriter for use in connection with the
offering of the Shares was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(h) As
of the
Initial Sale Time, the Disclosure Package did not include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. The preceding sentence does not apply to statements in
or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Underwriter
specifically for use therein,
it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
12
hereof.
(i) The
Incorporated Documents heretofore filed, when they were filed (or, if any
amendment with respect to any such document was filed, when such amendment
was
filed), conformed in all material respects with the requirements of the Exchange
Act and the rules and regulations thereunder, and any further Incorporated
Documents so filed after the date of this Agreement will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and
the rules and regulations thereunder; no such Incorporated Document when it
was
filed (or, if an amendment with respect to any such document was filed, when
such amendment was filed), contained an untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein not misleading; and no such Incorporated
Document, when it is filed, will contain an untrue statement of a material
fact
or will omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
(j) Each
Issuer Free Writing Prospectus, as of its issue date and as of the Initial
Sale
Time, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus, including any
Incorporated Document deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by the Underwriter specifically
for
use therein, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such
in
Section 12 hereof.
(k) The
authorized, issued and outstanding capital stock of the Company is and will
be
as set forth in the Prospectus under the caption “Capitalization.” All of the
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and have been
issued in compliance with applicable federal and state securities laws. None
of
the outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights; except
as
set forth in the Disclosure Package and the Prospectus, the Company is not
a
party to or bound by any outstanding options, warrants or similar rights to
subscribe for, or contractual obligations to issue, sell, transfer or acquire,
any of its capital stock or any securities convertible into or exchangeable
for
any of such capital stock; the Shares to be issued and sold to the Underwriter
by the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriter against full payment therefor in accordance with
the terms hereof will be validly issued, fully paid and nonassessable and free
of any preemptive rights, rights of first refusal or other or similar rights;
the Common Stock (including the Shares) of the Company conforms to the
description thereof contained in each of the Disclosure Package and the
Prospectus (or any amendment or supplement thereto); and the delivery of
certificates for the Shares being sold by the Company against payment therefor
pursuant to the terms of this Agreement will pass valid title to the Shares
being sold by the Company, free and clear of any claim, encumbrance or defect
in
title, to the several Underwriter purchasing such shares in good faith and
without notice of any lien, claim or encumbrance. The certificates for the
Shares being sold by the Company are in valid and sufficient form.
(l) Immediately
after the Closing Date, all of the issued and outstanding Common Units and
Preferred Units (as defined below) will be validly issued, fully paid and
nonassessable. Immediately after the transactions contemplated by this
Agreement, none of the outstanding Common Units or Preferred Units has been
or
will be issued or is owned or held in violation of any preemptive right, right
of first refusal or other similar right; and the outstanding Common Units and
Preferred Units have been or will be offered, sold and issued by the Partnership
in compliance with applicable federal and state securities laws.
(m) Each
of
the Company and its subsidiaries is duly organized and validly existing in
good
standing under the laws of the state of its incorporation or organization with
full corporate, partnership or entity power and authority, as the case may
be,
to own, lease and operate its properties and to conduct its business as
presently conducted and as described in the Disclosure Package and the
Prospectus (and any amendment or supplement thereto) and is duly registered
and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to so
register or qualify has not had or will not have a material adverse effect
on
the condition (financial or other), business, properties, results of operations
or prospects of the Company and its subsidiaries, taken as a whole (a “Material
Adverse Effect”). The Company is, and at the Closing Date will be, the sole
general partner of the Partnership, and the Company and MAC II of Delaware,
L.P.
(“MAC II”) collectively will own an approximate 89.8% interest in the
Partnership. The Company and MAC II own all of the outstanding preferred units
of partnership interest in the Partnership (the “Preferred Units”). Except as
described above, the Company or the Partnership is the sole direct or indirect
owner of all of the equity interests in each of the subsidiaries other than
the
Partnership.
(n) The
outstanding equity interests of each of the Company’s subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned by the Company, directly or through subsidiaries, free and clear of any
security interests, liens, encumbrances, equities or claims. The Company does
not have any subsidiaries and does not own a material interest in or control,
directly or indirectly, any other corporation, partnership, joint venture (other
than Mid-America CH/Realty II, L.P. in which the Company owns a 33.33% ownership
interest), association, trust or other business organization, except as set
forth in Exhibit 21 to the Company’s Annual Report on Form 10-K for its fiscal
year ended December 31, 2005, which is incorporated by reference into the
Registration Statement. As used in this Agreement, subsidiaries shall mean
direct and indirect subsidiaries of the Company.
(o) Except
as
described in the Disclosure Package and the Prospectus, there is no action,
suit, inquiry, proceeding or investigation by or before any court or
governmental or other regulatory or administrative agency or commission pending
or, to the best knowledge of the Company, threatened, against or involving
the
Company or its subsidiaries, which might individually or in the aggregate
prevent or adversely affect the transactions contemplated by this Agreement
or
result in a Material Adverse Effect, nor to the Company’s knowledge, is there
any basis for any such action, suit, inquiry, proceeding or investigation.
There
are no agreements, contracts, indentures, leases or other instruments that
are
required to be described in the Disclosure Package or the Prospectus (or any
amendment or supplement thereto) or to be filed as an exhibit to the
Registration Statement that are not described, filed or incorporated by
reference in the Registration Statement, the Disclosure Package and the
Prospectus as required by the Securities Act. All such contracts to which the
Company or any of its subsidiaries is a party have been duly authorized,
executed and delivered by the Company or the applicable subsidiary, constitute
valid and binding agreements of the Company or the applicable subsidiary and
are
enforceable against the Company or the applicable subsidiary in accordance
with
the terms thereof, except as enforceability thereof may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting
creditors’ rights generally and (ii) equitable principles being applied at the
discretion of a court before which any proceeding may be brought. Neither the
Company nor the applicable subsidiary has received notice or been made aware
that any other party is in breach of or default to the Company or its
subsidiaries under any of such contracts.
(p) Neither
the Company nor any of its subsidiaries is (i) in violation of (A) its charter,
articles of incorporation or bylaws, certificate of limited partnership,
partnership agreement, operating agreement or other organizational documents,
(B) to the Company’s knowledge any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of its
subsidiaries, the violation of which would have a Material Adverse Effect or
(C)
any decree of any court or governmental agency or body having jurisdiction
over
the Company or any of its subsidiaries; or (ii) in default in any material
respect in the performance of any obligation, agreement or condition contained
in (A) any bond, debenture, note or any other evidence of indebtedness or (B)
any agreement, indenture, lease or other instrument (each of (A) and (B), an
“Existing Instrument”) to which the Company or any of its subsidiaries is a
party or by which any of their properties may be bound, which default would
have
a Material Adverse Effect; and there does not exist any state of facts that
constitutes a default or an event of default on the part of the Company or
any
of its subsidiaries as defined in such documents or that, with notice or lapse
of time or both, would constitute such a default or event of default which
would
have a Material Adverse Effect.
(q) The
Company and the Partnership have full legal right, power and authority to enter
into and perform this Agreement and to consummate the transactions contemplated
herein, including the issuance, sale and delivery of the Shares as provided
herein and the Partnership’s issuance of the Common Units to the Company. The
Company’s and the Partnership’s execution and delivery of this Agreement and the
performance by the Company and the Partnership of their obligations under this
Agreement have been duly and validly authorized by the Company and the
Partnership and this Agreement has been duly executed and delivered by the
Company and the Partnership, and constitutes a valid and legally binding
agreement of the Company and the Partnership, enforceable against the Company
and the Partnership in accordance with its terms, except to the extent
enforceability may be limited by (i) the application of bankruptcy,
reorganization, insolvency and other laws affecting creditors’ rights generally
and (ii) equitable principles being applied at the discretion of a court before
which any proceeding may be brought, and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws.
(r) The
Second Amended and Restated Agreement of Limited Partnership of the Partnership,
including all amendments thereto (the “Partnership Agreement”) has been duly and
validly authorized, executed and delivered by or on behalf of the partners
of
the Partnership and constitutes a valid and binding agreement of the parties
thereto, enforceable in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization or
other
laws of general applicability relating to or affecting creditors’ rights or by
general equity principles.
(s) No
consent, approval, authorization, order, license, certificate, permit,
registration, designation or filing by or with any governmental agency or body
is required for the execution, delivery and performance by the Company and
the
Partnership of their respective obligations under this Agreement and the
consummation by the Company and the Partnership of the transactions contemplated
hereby, including the valid authorization, issuance, sale and delivery of the
Shares, except such as may be required by the NYSE and the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Shares, all of which will be, or have been effected, in accordance with this
Agreement.
(t) Neither
the issuance and sale of the Shares by the Company, the execution, delivery
or
performance of this Agreement by the Company and the Partnership nor the
consummation by the Company and the Partnership of the transactions contemplated
hereby (i) conflicts with or will conflict with or constitutes or will
constitute a breach of, or a default under, the Company’s charter or bylaws, the
Partnership’s certificate of limited partnership or the Partnership Agreement,
or any Existing Instrument to which the Company or any of its subsidiaries
is a
party or by which any of its or their properties may be bound, (iii) violates
any statute, law, regulation, ruling, filing, judgment, injunction, order or
decree applicable to the Company or any of its subsidiaries or any of their
properties, or (iv) results in a breach of, or default or Debt Repayment
Triggering Event (as defined below) under, or results in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the
Company or any of its subsidiaries pursuant to, or requires the consent of
any
other party to, any Existing Instrument, except for such conflicts, breaches,
defaults, liens, charges or encumbrances that will not, individually or in
the
aggregate, result in a Material Adverse Effect. As used herein, a “Debt
Repayment Triggering Event” means any event or condition that gives, or with the
giving of notice or lapse of time would give, the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.
(u) No
holder
of any securities of the Company has rights to the registration of any
securities of the Company or other similar rights as a result of or in
connection with the filing of the Registration Statement or the consummation
of
the transactions contemplated hereby that have not been satisfied or heretofore
waived in writing. No person or entity has a right of participation or first
refusal with respect to the sale of the Shares by the Company.
(v) KPMG
LLP
and Ernst & Young LLP, who have audited the financial statements (including
the related notes thereto and supporting schedules) incorporated by reference
in
the Registration Statement, the Disclosure Package and the Prospectus (or any
amendment or supplement thereto), are and were, during the periods covered
by
their reports incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, independent registered public accountants
as required by the Securities Act and the Exchange Act and the applicable rules
and regulations of the Commission thereunder.
(w) The
financial statements, together with related schedules and notes, included or
incorporated by reference in the Registration Statement and the Prospectus
(and
any amendment or supplement thereto), present fairly the financial condition,
results of operations, cash flows and changes in financial position of the
Company on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement, the Disclosure
Package and Prospectus (and any amendment or supplement thereto) is accurately
presented and prepared on a basis consistent with such financial statements
and
the books and records of the Company. No other financial statements or schedules
are required by Form S-3 or otherwise to be included in the Registration
Statement or the Prospectus. The Company’s consolidated ratio of combined fixed
charges and preferred stock distributions and consolidated ratio of earnings
to
fixed charges set forth in the Registration Statement, the Preliminary
Prospectus, the Disclosure Package and the Prospectus and Exhibit 12.1 to the
Registration Statement have been calculated in compliance with Item 503(d)
of
Regulation S-K under the Securities Act.
(x) Except
as
disclosed in the Registration Statement, the Disclosure Package and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement, the Disclosure Package and the Prospectus (or any amendment or
supplement thereto), (i) neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, indirect, direct or
contingent, or entered into any transaction that is not in the ordinary course
of business, (ii) neither the Company nor any of its subsidiaries has sustained
any material loss or interference with its business or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance, (iii) neither the Company nor any of its subsidiaries has paid or
declared any dividends or other distributions with respect to its capital stock
and the Company is not in default under the terms of any class of capital stock
of the Company or any outstanding debt obligations, (iv) there has not been
any
change in the authorized or outstanding capital stock of the Company or any
material change in the indebtedness of the Company (other than in the ordinary
course of business) and (v) there has not been any material adverse change,
or
any development involving or that may reasonably be expected to result in a
Material Adverse Effect.
(y) The
Shares have been approved for trading and listing on the NYSE, subject to
official notice of issuance of the Shares being sold by the Company. The Common
Stock is registered pursuant to Section 12(b) of the Exchange Act, and the
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
delisting any such securities from the NYSE, nor has the Company received any
notification that the Commission or the NYSE is contemplating terminating such
registration or listing.
(z) The
Company has not distributed and will not distribute, and has not authorized
the
Underwriter to distribute, any offering material in connection with the offering
and sale of the Shares other than the Prospectus and any Issuer Free Writing
Prospectus reviewed and consented to by the Underwriter or identified in
Schedule II
hereto.
(aa) Other
than excepted activity pursuant to Regulation M under the Exchange Act, the
Company has not taken and will not take, directly or indirectly, any action
that
constituted, or any action designed to, or that might reasonably be expected
to
cause or result in or constitute stabilization or manipulation of the price
of
any security of the Company to facilitate the sale or resale of the Shares
or
for any other purpose.
(bb) The
Company and each of its subsidiaries have filed all tax returns required to
be
filed (other than certain state or local tax returns, as to which the failure
to
file, individually or in the aggregate, would not have a Material Adverse
Effect), which returns are complete and correct in all material respects, and
neither the Company nor any subsidiary is in default in the payment of any
taxes
that were payable pursuant to said returns or any assessments with respect
thereto. Except as disclosed in the Disclosure Package and the Prospectus (as
amended or supplemented), all deficiencies asserted as a result of any federal,
state, local or foreign tax audits have been paid or finally settled and no
issue has been raised in any such audit that, by application of the same or
similar principles, reasonably could be expected to result in a proposed
deficiency for any other period not so audited. There are no outstanding
agreements or waivers extending the statutory period of limitation applicable
to
any federal, state, local or foreign tax return for any period. On the Closing
Date and the Additional Closing Date, as the case may be, all stock transfer
and
other taxes that are required to be paid in connection with the sale of the
shares to be sold by the Company to the Underwriter will have been fully paid
by
the Company and all laws imposing such taxes will have been complied
with.
(cc) Except
as
set forth in the Disclosure Package and the Prospectus (as amended or
supplemented), there are no transactions with “affiliates” (as defined in Rule
405 promulgated under the Securities Act) or any officer, director or security
holder of the Company (whether or not an affiliate) that are required by the
Securities Act to be disclosed in the Prospectus that have not been disclosed
as
required. Additionally, no relationship, direct or indirect, exists between
the
Company or any of its subsidiaries on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any subsidiary on the
other hand that is required by the Securities Act to be disclosed in the
Disclosure Package and the Prospectus that is not so disclosed.
(dd) None
of
the Company nor any of its subsidiaries is an “investment company”, a company
“controlled” by an “investment company” or an “affiliated person” of, or
“promoter” or “principal underwriter” for, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(ee) Each
of
the Company and its subsidiaries has good and valid title to all property (real
and personal) described in the Disclosure Package and the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances except (i) such as are described in the Disclosure Package and
the
Prospectus or (ii) such as are not materially burdensome and do not have or
will
not adversely affect the Company’s or subsidiaries’ use of the property or the
conduct of the business of the Company. All property (real and personal) leased
by the Company and its subsidiaries is held under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are not
materially burdensome and do not or will not adversely affect the use of the
property or the conduct of the business of the Company.
(ff) The
Company and its subsidiaries have all permits, licenses, franchises, approvals,
consents and authorizations of governmental or regulatory authorities
(hereinafter “permit” or “permits”) as are necessary to own their properties and
to conduct their business in the manner described in the Disclosure Package
and
the Prospectus, subject to such qualifications as may be set forth in the
Disclosure Package and the Prospectus, except where the failure to have obtained
any such permit has not had and will not have a Material Adverse Effect; each
of
the Company and its subsidiaries has operated and is operating its business
in
material compliance with all of its obligations with respect to each such permit
and no event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination of any such permit and except where such
revocation or termination would not have a Material Adverse Effect or result
in
any other material impairment of the rights of any such permit, subject in
each
case to such qualification as may be set forth in the Disclosure Package and
the
Prospectus; and, except as described in the Disclosure Package and the
Prospectus, such permits contain no restrictions that are materially burdensome
to the Company or any of its subsidiaries.
(gg) The
Company and its subsidiaries have implemented controls and other procedures
that
are designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms and is accumulated and communicated to the
Company’s management, including its chief executive officer and chief financial
officer, or persons performing similar functions, as appropriate to allow timely
decisions regarding required disclosure; and the Company makes and keeps books,
records, and accounts which, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the Company and its
subsidiaries; and the Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and, to the Company’s and the
Partnership’s knowledge, neither the Company, the Partnership nor any
subsidiary, nor any employee or agent thereof, has made any payment of funds
of
the Company, the Partnership or any of the subsidiaries, as the case may be,
or
received or retained any funds, and no funds of the Company, the Partnership
or
any of the subsidiaries, as the case may be, have been set aside to be used
for
any payment, in each case in violation of any law, rule or
regulation.
(hh) Neither
the Company nor any of its subsidiaries, since each has been a subsidiary of
the
Company, nor, to the Company’s knowledge, any employee or agent of the Company
or any of its subsidiaries, has, directly or indirectly, (i) made any unlawful
contribution to any candidate for political office, or failed to disclose fully
any contribution in violation of law or (ii) made any payment to any federal,
state, local or foreign governmental official, or other person charged with
similar public or quasi-public duties, other than payments required or permitted
by the laws of the United States or any jurisdiction thereof or applicable
foreign jurisdictions.
(ii) The
Company and its subsidiaries are (i) in compliance with any and all applicable
federal, state, local and foreign laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license
or
approval, except where such noncompliance with Environmental Laws, failure
to
receive required permits, licenses or other approvals or failure to comply
with
the terms and conditions of such permits, licenses or other approvals would
not,
individually or in the aggregate, have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended. Neither the Company nor any of its subsidiaries owns,
leases or occupies any property that appears on any list of hazardous sites
compiled by any state or local governmental agency.
(jj) There
are
no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license
or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have
a
Material Adverse Effect.
(kk) The
Company has been organized and has operated in conformity with the requirements
for qualification and taxation as a real estate investment trust under the
Code
for its taxable years ended December 31, 1994 through December 31, 2005, and
the
Company’s current and proposed method of operation will enable it to continue to
meet the requirements for taxation as a real estate investment trust under
the
Code for its taxable year ending December 31, 2006 and in the future. The
subsidiaries of the Company that are partnerships have been and will continue
to
be treated as partnerships for federal income tax purposes and not as
corporations, associations taxable as corporations or as publicly traded
partnerships.
(ll) The
Company will use its best efforts to monitor the ownership of the Company’s
capital stock to ensure that the Limited Waiver of Excess Share Limitation
(the
“Limited Waiver”), by and between the Company and Xxxxx & Steers Capital
Management, Inc. (“Xxxxx & Steers”), dated January 2005, will not cause the
Company to fail to satisfy the requirements of section 856(a)(6) of the Code,
including, without limitation, making periodic inquiries regarding the ownership
of the capital stock of the Company by Xxxxx & Steers and making periodic
reviews of the ownership of the capital stock of the Company by other
shareholders; the Company will, if necessary to prevent a violation of the
requirements of section 856(a)(6) of the Code, promptly exercise the power
in
section 1(c) of the Limited Waiver to revoke the excess share limitation granted
to Xxxxx & Steers pursuant to the Limited Waiver; and the Company will use
its best efforts to have the Limited Waiver amended to provide that the excess
share limitation for Xxxxx & Steers will be automatically revoked to the
extent any individual directly or indirectly owns, as a result of the Xxxxx
& Steers’ ownership of the Common Stock, more than 9.9% of the outstanding
capital stock of the Company at any time.
(mm) The
Company and its subsidiaries own and have full right, title and interest in
and
to, or has valid licenses to use, each material trade name, trademark, service
xxxx, patent, copyright, approval, trade secret and other similar rights
(collectively “Intellectual Property”) under which the Company and its
subsidiaries conduct all or any material part of its business, and the Company
has not created any lien or encumbrance on, or granted any right or license
with
respect to, any such Intellectual Property except where the failure to own
or
obtain a license or right to use any such Intellectual Property has not and
will
not have a Material Adverse Effect; there is no claim pending against the
Company or its subsidiaries with respect to any Intellectual Property, and
the
Company and its subsidiaries have not received notice or otherwise become aware
that any Intellectual Property that it uses or has used in the conduct of its
business infringes upon or conflicts with the rights of any third party. Neither
the Company nor any of its subsidiaries has become aware that any material
Intellectual Property that it uses or has used in the conduct of its business
infringes upon or conflicts with the rights of any third party.
(nn) No
officer, director or nominee for director of the Company has a direct or
indirect affiliation or association with any member of the NASD.
(oo) The
Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; and neither the
Company nor any of its subsidiaries has reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a comparable cost.
(pp) Title
insurance in favor of the Company, the Partnership and the subsidiaries has
been
obtained with respect to each property owned by any such entity in an amount
at
least equal to (A) the cost of acquisition of such property or (B) the
cost of construction of such property (measured at the time of such
construction), except where the failure to maintain such title insurance would
not have a Material Adverse Effect.
(qq) In
the
ordinary course of its business, the Company conducts a periodic review of
the
effect of Environmental Laws on the business, operations and properties of
the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On
the
basis of such review and amount of its established reserves, the Company has
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse
Effect.
(rr) The
Company and its subsidiaries and any “employee benefit plan” (as defined under
the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its subsidiaries or their “ERISA
Affiliates” (as defined below) are in compliance in all material respects with
ERISA and all other applicable state and federal laws. “ERISA Affiliate” means,
with respect to the Company or a subsidiary, any member of any group or
organization described in Sections 414(b), (c), (m) or (o) of the Code of which
the Company or such subsidiary is a member. No “reportable event” (as defined in
ERISA) has occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their
ERISA
Affiliates, if such “employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined in ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “employee benefit plan” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their
ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code
is
so qualified and nothing has occurred, whether by action or failure to act,
that
would cause the loss of such qualification.
(ss) The
Company and its subsidiaries have complied and will comply in all material
respects with wage and hour determinations issued by the U.S. Department of
Labor under the Service Contract Act of 1965 and the Fair Labor Standards Act
in
paying its employees’ salaries, fringe benefits and other compensation for the
performance of work or other duties in connection with contracts with the U.S.
government, and have complied and will comply in all material respects with
the
requirements of the Americans with Disabilities Act of 1990, the Family and
Medical Leave Act of 1993, the Civil Rights Act of 1964 (Title VII), the
National Labor Relations Act, the Vietnam Era Veteran’s Readjustment Act, the
Age Discrimination in Employment Act, as amended by the Older Workers’ Benefit
Protection Act, and federal, state and local labor laws, each as amended except
where the failure to comply with any such requirements has not, and will not,
have a Material Adverse Effect.
(tt) Except
with respect to the non-timely filings of reports pursuant to Section 16(a)
of
the Exchange Act by certain of the Company’s officers as described in the
Company’s Definitive Proxy Statement dated April 13, 2006 under the caption
“Section 16(a) Beneficial Ownership Reporting Compliance,” this is and has been
no failure on the part of the Company, the Partnership and the subsidiaries
and
any of the officers and directors of the Company, the Partnership and any of
the
subsidiaries, in their capacities as such, to comply in all material respects
with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder.
7. Expenses.
Whether
or not the transactions contemplated hereby are consummated or this Agreement
becomes effective or is terminated, the Company agrees to pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation, printing
and
filing of the Registration Statement and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriter and dealers; (ii) the printing and delivery (including postage,
air
freight charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, the Disclosure Package, the Blue Sky
memoranda, the Master Agreement Among Underwriter, this Agreement, the Selected
Dealers Agreement and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares; (iii) consistent with the provisions of Section 5(j), all
expenses in connection with the qualification of the Shares for offering and
sale under state securities laws or Blue Sky laws, including reasonable
attorneys’ fees and out-of-pocket expenses of the counsel for the Underwriter in
connection therewith; (iv) the filing fees incident to securing any required
review by the NASD of the fairness of the terms of the sale of the Shares and
the reasonable fees and disbursements of the Underwriter’ counsel relating
thereto; (v) the fees and expenses associated with listing the Shares on the
NYSE; (vi) the cost of preparing stock certificates; (vii) the costs and charges
of any transfer agent or registrar; and (viii) all other fees, costs and
expenses referred to in Item 14 of the Registration Statement. Except as
provided in this Section 7 and in Section 8 hereof, the Underwriter shall pay
its own expenses, including the fees and disbursements of counsel to the
Underwriter. In addition, in the event that the proposed offering of the Shares
is terminated for the reasons set forth in Section 5(j) hereof, the Company
agrees to reimburse the Underwriter as provided in Section 5(j).
8. Indemnification
and Contribution.
Subject
to the limitations in this paragraph below, the Company and the Partnership,
jointly and severally, agree to indemnify and hold harmless the Underwriter,
the
directors, officers, employees and agents of the Underwriter, and each person,
if any, who controls the Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses, including reasonable costs
of
investigation and attorneys’ fees and expenses (collectively, “Damages”) arising
out of or based upon (i) any untrue statement or alleged untrue statement of
a
material fact contained in the Registration Statement, the Preliminary
Prospectus, the Disclosure Package, the Prospectus, any Free Writing Prospectus
or Issuer Free Writing Prospectus or in any amendment or supplement to any
of
the foregoing, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except to the extent that any such Damages arise out of or
are
based upon an untrue statement or omission or alleged untrue statement or
omission that has been made therein or omitted therefrom in reliance upon and
in
conformity with the information furnished in writing to the Company by or on
behalf of any Underwriter through the Underwriter, expressly for use in
connection therewith or (ii) any inaccuracy in or breach of the representations
and warranties of the Company or the Partnership contained herein or any failure
of the Company to perform its obligations hereunder or under law. This
indemnification shall be in addition to any liability that the Company and
the
Partnership may otherwise have.
In
addition to its other obligations under this Section 8, the Company and the
Partnership agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based
upon
any statement or omission, or any inaccuracy in the representations and
warranties of the Company or the Partnership herein or failure to perform its
obligations hereunder, all as set forth in this Section 8, the party against
whom indemnification is being sought will reimburse the Underwriter on a monthly
basis for all reasonable legal or other out-of-pocket expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding (to the extent documented by
reasonably itemized invoices therefor), notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the obligation
of the Company and the Partnership to reimburse the Underwriter for such
expenses and the possibility that such payments might later be held to have
been
improper by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, the Underwriter
shall promptly return it to the person(s) from whom it was received. Any such
interim reimbursement payments that are not made to the Underwriter within
30
days of a request for reimbursement shall bear interest compounded daily at
a
rate determined on the basis of the base lending rate announced from time to
time by The Wall Street Journal from the date of such request.
If
any
action or claim shall be brought against the Underwriter or any person
controlling the Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act in respect of which indemnity may be
sought against the Company and the Partnership, the Underwriter or such
controlling person shall promptly notify in writing the party or parties against
whom indemnification is being sought (the “indemnifying party” or “indemnifying
parties”), and such indemnifying party or parties shall assume the defense
thereof, including the employment of counsel reasonably acceptable to the
Underwriter or such controlling person and the payment of all reasonable fees
of
and expenses incurred by such counsel. The Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Underwriter or such controlling person, unless
(i) the indemnifying party or parties has (have) agreed in writing to pay such
fees and expenses, (ii) the indemnifying party or parties has (have) failed
to
assume the defense and employ counsel reasonably acceptable to the Underwriter
or such controlling person or (iii) the named parties to any such action
(including any impleaded parties) include both the Underwriter or such
controlling person and the indemnifying party or parties, and the Underwriter
or
such controlling person shall have been advised by its counsel that one or
more
legal defenses may be available to the Underwriter that may not be available
to
the Company, or that representation of such indemnified party and any
indemnifying party or parties by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of the
Underwriter or such controlling person (but the Company and the Partnership
shall not be liable for the fees and expenses of more than one counsel for
the
Underwriter and such controlling persons)). The indemnifying party or parties
shall not be liable for any settlement of any such action effected without
its
(their several) written consent, but if settled with such written consent,
or if
there be a final judgment for the plaintiff in any such action, the indemnifying
party or parties agree(s) to indemnify and hold harmless any Underwriter and
any
such controlling person from and against any loss, claim, damage, liability
or
expense by reason of such settlement or judgment, but in the case of a judgment
only to the extent stated in the first and second paragraph of this Section
8.
The
Underwriter agrees to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and any person who controls
the
Company within the meaning of Section 15 of the Securities Act or Section 20
of
the Exchange Act, to the same extent as the foregoing several indemnity from
the
Company and the Partnership to the Underwriter, but only with respect to
information furnished in writing by the Underwriter expressly for use in the
Registration Statement, the Prospectus, the Disclosure Package, any Issuer
Free
Writing Prospectus or the Preliminary Prospectus, or any amendment or supplement
to any of the foregoing. If any action or claim shall be brought or asserted
against the Company, any of its directors, any of its officers or any such
controlling person based on the Registration Statement, the Prospectus, the
Disclosure Package or the Preliminary Prospectus, or any amendment or supplement
to any of the foregoing, and in respect of which indemnity may be sought against
the Underwriter pursuant to this paragraph, the Underwriter shall have the
rights and duties given to the Company and the Partnership by the immediately
preceding paragraph (except that if the Company shall have assumed the defense
thereof, the Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the Underwriter’s expense), and the
Company, its directors, officers and any such controlling persons, shall have
the rights and duties given to the Underwriter by the immediately preceding
paragraph.
In
any
event, the Company and the Partnership will not, without the prior written
consent of the Underwriter, settle or compromise or consent to the entry of
any
judgment in any proceeding or threatened claim, action, suit or proceeding
in
respect of which the indemnification may be sought hereunder (whether or not
the
Underwriter or any person who controls the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act is a party
to
such claim, action, suit or proceeding) unless such settlement, compromise
or
consent includes an unconditional release of the Underwriter and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
If
the
indemnification provided for in this Section 8 is unavailable or insufficient
for any reason whatsoever to an indemnified party in respect of any Damages
referred to herein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Partnership on the one hand, and the Underwriter on the other hand, from the
offering and sale of the Shares or (ii) if the allocation provided by clause
(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative and several fault of the Company and the Partnership on the
one hand, and the Underwriter on the other hand, in connection with the
statements or omissions that resulted in such Damages as well as any other
relevant equitable considerations. The relative and several benefits received
by
the Company and the Partnership on the one hand, and the Underwriter on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Partnership bear to the total underwriting discounts and commissions
received by the Underwriter, in each case as set forth in the table on the
cover
page of the Prospectus; provided that, in the event that the Underwriter shall
have purchased any Additional Shares hereunder, any determination of the
relative benefits received by the Company and the Partnership or the Underwriter
from the offering of the Shares shall include the net proceeds (before deducting
expenses) received by the Company and the Partnership and the underwriting
discounts and commissions received by the Underwriter, from the sale of such
Additional Shares, in each case computed on the basis of the respective amounts
set forth in the notes to the table on the cover page of the Prospectus. The
relative fault of the Company and the Partnership on the one hand, and the
Underwriter on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Partnership on the one hand, or by the
Underwriter on the other hand and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission.
The
Company, the Partnership and the Underwriter agree that it would not be just
and
equitable if contribution pursuant to this Section 8 was determined by a pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the
Damages referred to in the immediately preceding paragraph shall be deemed
to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Underwriter shall not be required to contribute any amount in
excess of the amount of the underwriting commissions received by the Underwriter
in connection with the Shares underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Notwithstanding
the second paragraph of this Section 8, any Damages for which an indemnified
party is entitled to indemnification or contribution under this Section 8 shall
be paid by the indemnifying party to the indemnified party as Damages are
incurred after receipt of reasonably itemized invoices therefor. The indemnity,
contribution and reimbursement agreements contained in this Section 8 and the
representations and warranties of the Company and the Partnership set forth
in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or any
person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor
to
the Underwriter or any person controlling the Underwriter, or to the Company,
its directors or officers or any person controlling the Company shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
It
is
agreed that any controversy arising out of the operation of the interim
reimbursement arrangements set forth in the second paragraph of this Section
8,
including the amounts of any requested reimbursement payments and the method
of
determining such amounts, shall be settled by arbitration conducted pursuant
to
the Code of Arbitration Procedure of the NASD. Any such arbitration must be
commenced by service of a written demand for arbitration or written notice
of
intention to arbitrate, therein electing the arbitration tribunal. In the event
the party demanding arbitration does not make such designation of an arbitration
tribunal in such demand or notice, then the party responding to said demand
or
notice is authorized to do so. Such arbitration would be limited to the
operation of the interim reimbursement provisions contained in this Section
8,
and would not resolve the ultimate propriety or enforceability of the obligation
to reimburse expenses that is created by the provisions of this Section
8.
9. Conditions
of Underwriter’s Obligations.
The
obligation of the Underwriter to purchase the Firm Shares hereunder is subject
to the following conditions:
(a) A
prospectus containing the information permitted to be omitted from the
Registration Statement at the time of its effectiveness by Rule 430B of the
Securities Act shall have been filed with the Commission in the manner and
within the time period required by Rule 424(b) of the Securities Act without
reliance on Rule 424(b)(8) of the Securities Act (or a post-effective amendment
to the Registration Statement providing such information shall have been filed
and become effective in accordance with the requirements of Rule 430B of the
Securities Act). The Company shall have paid the required Commission filing
fees
relating to the Shares within the time period required by Rule 456(1)(i) of
the
Securities Act without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall
have updated the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii) of the Securities Act either in a post-effective amendment to
the
Registration Statement or on the cover page of a prospectus filed pursuant
to
Rule 424(b) of the Securities Act.
(b) The
Underwriter shall be reasonably satisfied that since the respective dates as
of
which information is given in the Registration Statement, the Disclosure Package
and the Prospectus, (i) there shall not have been any change in the capital
stock of the Company or any material change in the indebtedness (other than
in
the ordinary course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement, the Disclosure Package or the
Prospectus, no material oral or written agreement or other transaction shall
have been entered into by the Company or any of its subsidiaries that is not
in
the ordinary course of business or that could reasonably be expected to result
in a material reduction in the future earnings of the Company, (iii) no loss
or
damage (whether or not insured) to the property of the Company or any of its
subsidiaries shall have been sustained that had or could reasonably be expected
to have a Material Adverse Effect, (iv) no legal or governmental action, suit
or
proceeding affecting the Company or any of its subsidiaries or any of their
properties that is material to the Company or that affects or could reasonably
be expected to affect the transactions contemplated by this Agreement shall
have
been instituted or threatened and (v) there shall not have been any material
change in the condition (financial or otherwise), business, management, results
of operations or prospects of the Company or its subsidiaries that makes it
impractical or inadvisable in your judgment to proceed with the public offering
or purchase of the Shares as contemplated hereby.
(c) The
Underwriter shall have received on the Closing Date (and the Additional Closing
Date, if any) an opinion of Bass, Xxxxx & Xxxx PLC, counsel to the Company
and the Partnership, substantially to the effect as set forth in Schedule
III
attached
hereto:
(d) The
Underwriter shall have received on the Closing Date or Additional Closing Date,
as the case may be, an opinion of Hunton & Xxxxxxxx LLP, as counsel for the
Underwriter, dated the Closing Date or any Additional Closing Date, as the
case
may be, with respect to the issuance and sale of the Shares, the Registration
Statement and other related matters as the Underwriter may reasonably request,
and the Company and its counsel shall have furnished to your counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(e) The
Underwriter shall have received letters addressed to you and dated the date
hereof and the Closing Date or any Additional Closing Date, as the case may
be,
from (i) the firm of KPMG LLP, independent registered public accounting firm,
and (ii) Ernst & Young LLP, independent registered public accounting firm,
substantially in the forms heretofore approved by you.
(f) (i)
No
stop order suspending the effectiveness of the Registration Statement shall
have
been issued by the Commission and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, shall be threatened or contemplated
by the Commission at or prior to the Closing Date or Additional Closing Date,
as
the case may be; (ii) no order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares under the
securities or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending or, to the knowledge of the
Company, threatened or contemplated by the authorities of any jurisdiction;
(iii) any request for additional information on the part of the staff of the
Commission or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities; (iv) after
the
date hereof, no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted
to
you and you did not object thereto in good faith; and (v) all of the
representations and warranties of the Company and the Partnership contained
in
this Agreement shall be true and correct in all material respects (except for
such representations and warranties qualified by materiality, which
representations and warranties shall be true and correct in all respects) on
and
as of the date hereof and on and as of the Closing Date or any Additional
Closing Date, as the case may be, as if made on and as of the Closing Date
or
Additional Closing Date, as the case may be, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you) to the effect set forth in this Section 9(g) and in Sections
9(b) and 9(i) hereof.
(g) The
Company and the Partnership shall not have failed in any material respect at
or
prior to the Closing Date or the Additional Closing Date, as the case may be,
to
have performed or complied with any of their agreements herein contained and
required to be performed or complied with by them hereunder at or prior to
the
Closing Date or Additional Closing Date, as the case may be.
(h) The
Company and the Partnership shall have furnished or caused to have been
furnished to the Underwriter such further certificates and documents as the
Underwriter shall have reasonably requested.
(i) At
or
prior to the effective date of the Registration Statement, you shall not have
received from the Corporate Financing Department of the NASD any objection
to
the fairness or reasonableness of the underwriting terms and arrangements of
the
offering contemplated hereby.
(j) The
Underwriter shall have received on the Closing Date and the Additional Closing
Date, as the case may be, a letter addressed to the Underwriter substantially
in
the form of Exhibit
A
hereto
from H. Xxxx Xxxxxx and Xxxxx X.X. Xxxxxxxxx.
All
such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to you and your counsel. The obligation of the Underwriter to purchase
Additional Shares hereunder are subject to the satisfaction on and as of the
Additional Closing Date, if any, of the conditions set forth in this Section
9,
except that, if such Additional Closing Date is other than the Closing Date,
the
certificates, opinions and letters referred to in this Section 9 shall be dated
as of the Additional Closing Date and the opinions called for by paragraphs
(c)
and (d) shall be revised to reflect the sale of Additional Shares.
If
any of
the conditions hereinabove provided for in this Section 9 shall not have been
satisfied when and as required by this Agreement, this Agreement may be
terminated by the Underwriter by notifying the Company of such termination
in
writing or by telegram at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
10. Effective
Date of Agreement.
This
Agreement shall become effective upon the later of the execution and delivery
hereof by the parties hereto.
11. Termination
of Agreement.
This
Agreement shall be subject to termination in the Underwriter’s absolute
discretion, without liability on the part of the Underwriter to the Company
by
notice to the Company, if prior to the Closing Date or any Additional Closing
Date (if different from the Closing Date and then only as to the Additional
Shares), as the case may be, in your sole judgment, (i) trading in the Company’s
Common Stock shall have been suspended by the Commission or the NYSE, (ii)
trading in securities generally on the NYSE or The NASDAQ Stock Market shall
have been suspended or materially limited, or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by any such exchange
or
by order of the Commission or any court or other governmental authority, (iii)
a
general moratorium on commercial banking activities shall have been declared
by
either federal or New York State authorities, (iv) any downgrading shall have
occurred in the rating accorded the Company’s debt securities or preferred stock
by any “nationally recognized statistical rating organization,” as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, (v)
any
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company’s debt securities or (vi) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis
or
change in political, financial or economic conditions or other material event
the effect of which on the financial markets of the United States is such as
to
make it, in your judgment, impracticable or inadvisable to market the Shares
or
to enforce contracts for the sale of the Shares. Notice of such cancellation
shall be promptly given to the Company and its counsel by telegraph, telecopy
or
telephone and shall be subsequently confirmed by letter.
12. Information
Furnished by the Underwriter.
The
Company acknowledges that (i) the third and tenth paragraphs under the caption
“Underwriting” in the Prospectus Supplement, (ii) the second sentence of the
twelfth paragraph under the caption “Underwriting” and (iii) the last paragraph
on the cover page of the Prospectus Supplement, which refers to the expected
date of delivery of the Shares purchased in the offering to the respective
purchasers, constitute the only information furnished by the Underwriter as
such
information is referred to in Sections 6.1(e), 6.1(f), 6.1(h), 6.1(j) and
Section 8 hereof.
13. Miscellaneous.
Except
as otherwise provided in Sections 5 and 11 hereof, notice given pursuant to
any
of the provisions of this Agreement shall be in writing and shall be
delivered;
(i) if
to the
Company:
Mid-America
Apartment Communities, Inc.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
President
with
a
copy to:
Bass,
Xxxxx & Xxxx PLC
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxxxx X. XxxXxxxxx, Esq.;
and
(ii) if
to the
Underwriter:
Xxxxxxx
Xxxxx & Associates, Inc.
000
Xxxxxxxx Xxxxxxx
Xx.
Xxxxxxxxxx, XX 00000
Attention:
Xxxx Xxxxxxx
with
a
copy to:
Hunton
& Xxxxxxxx LLP
Riverfront
Plaza, East Tower
000
Xxxx
Xxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxx, Esq.
This
Agreement has been and is made solely for the benefit of the Underwriter, the
Company and its directors and officers and the Partnership.
14. Applicable
Law; Counterparts.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida without reference to choice of law principles
thereunder.
This
Agreement may be signed in various counterparts, which together shall constitute
one and the same instrument.
This
Agreement shall be effective when, but only when, at least one counterpart
hereof shall have been executed on behalf of each party hereto.
The
Company, the Partnership and the Underwriter each hereby irrevocably waive
any
right they may have to a trial by jury in respect to any claim based upon or
arising out of this Agreement or the transactions contemplated
hereby.
[Signatures
Appear on the Following Page]
*
Plus an
additional 150,000 shares subject to the Underwriter’s over-allotment
option.
Please
confirm that the foregoing correctly sets forth the agreement among the Company,
the Partnership and the Underwriter.
Very
truly yours,
MID-AMERICA
APARTMENT COMMUNITIES, INC.
By:
/s/
Simon X.X. Xxxxxxxxx
Name:
Simon X.X. Xxxxxxxxx
Title:
EVP, CFO
MID-AMERICA
APARTMENTS, L.P.
By:
Mid-America Apartment Communities, Inc., its general partner
By:
/s/
Simon X.X. Xxxxxxxxx
Name:
Simon X.X. Xxxxxxxxx
Title:
EVP, CFO
CONFIRMED
as of the date first above
mentioned.
XXXXXXX
XXXXX & ASSOCIATES, INC.
By: /s/
Xxxx Xxxxxxx
Authorized
Underwriter