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 This Agreement and Plan of Merger involves

MID AMERICA APARTMENT COMMUNITIES INC | MID-AMERICA APARTMENT COMMUNITIES, INC | MID-AMERICA APARTMENTS, LP | POST APARTMENT HOMES, LP | POST GP HOLDINGS, INC | Post Properties, Inc

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Title: AGREEMENT AND PLAN OF MERGER by and among
Governing Law: Delaware     Date: 8/15/2016
Law Firm: Goodwin Procter;Bass Berry;King Spalding    

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Exhibit 2.1

Execution Version

 

AGREEMENT AND PLAN OF MERGER

by and among

MID-AMERICA APARTMENT COMMUNITIES, INC.

MID-AMERICA APARTMENTS, L.P.

POST PROPERTIES, INC.

POST GP HOLDINGS, INC.

and

POST APARTMENT HOMES, L.P.

Dated as of August 15, 2016

 

 

 


TABLE OF CONTENTS

 

 

 

 

  

 

  

Page

 

Article I DEFINITIONS

  

 

2

  

 

Section 1.1

  

Definitions

  

 

2

  

 

Section 1.2

  

Interpretation and Rules of Construction

  

 

11

  

Article II THE MERGERS

  

 

11

  

 

Section 2.1

  

The Partnership Merger

  

 

11

  

 

Section 2.2

  

The Parent Merger

  

 

12

  

 

Section 2.3

  

Closing

  

 

12

  

 

Section 2.4

  

Governing Documents

  

 

14

  

 

Section 2.5

  

Board of Directors

  

 

14

  

 

Section 2.6

  

Tax Consequences

  

 

14

  

Article III EFFECTS OF THE MERGERS

  

 

14

  

 

Section 3.1

  

Effects on Shares

  

 

14

  

 

Section 3.2

  

Effects on Partnership Interests

  

 

15

  

 

Section 3.3

  

Adjustments

  

 

15

  

 

Section 3.4

  

Post Options and Restricted Stock

  

 

16

  

 

Section 3.5

  

Exchange of Certificates

  

 

16

  

 

Section 3.6

  

Withholding Rights

  

 

19

  

 

Section 3.7

  

Structure

  

 

19

  

 

Section 3.8

  

Fractional Shares

  

 

20

  

 

Section 3.9

  

Lost Certificates

  

 

20

  

Article IV REPRESENTATIONS AND WARRANTIES OF POST

  

 

20

  

 

Section 4.1

  

Organization and Qualification; Subsidiaries

  

 

20

  

 

Section 4.2

  

Organizational Documents

  

 

21

  

 

Section 4.3

  

Capital Structure

  

 

21

  

 

Section 4.4

  

Authority

  

 

22

  

 

Section 4.5

  

No Conflict; Required Filings and Consents

  

 

23

  

 

Section 4.6

  

Permits; Compliance with Law

  

 

24

  

 

Section 4.7

  

SEC Documents; Financial Statements

  

 

25

  

 

Section 4.8

  

Absence of Certain Changes or Events

  

 

26

  

 

Section 4.9

  

No Undisclosed Material Liabilities

  

 

26

  

 

Section 4.10

  

No Default

  

 

26

  

 

Section 4.11

  

Litigation

  

 

26

  

 

Section 4.12

  

Taxes

  

 

26

  

 

Section 4.13

  

Pension and Benefit Plans; Employees

  

 

29

  

 

Section 4.14

  

Labor and Employment Matters

  

 

30

  

 

Section 4.15

  

Information Supplied

  

 

31

  

 

Section 4.16

  

Intellectual Property

  

 

31

  

 

i


 

 

 

  

 

  

Page

 

 

Section 4.17

  

Environmental Matters

  

 

32

  

 

Section 4.18

  

Properties

  

 

33

  

 

Section 4.19

  

Material Contracts

  

 

35

  

 

Section 4.20

  

Insurance

  

 

36

  

 

Section 4.21

  

Opinion of Post Financial Advisor

  

 

37

  

 

Section 4.22

  

Vote Required

  

 

37

  

 

Section 4.23

  

Brokers

  

 

37

  

 

Section 4.24

  

Investment Company Act

  

 

37

  

 

Section 4.25

  

Takeover Statutes

  

 

37

  

 

Section 4.26

  

Related Party Transactions

  

 

37

  

 

Section 4.27

  

No Dissenter’s Rights

  

 

37

  

 

Section 4.28

  

No Other Representations and Warranties

  

 

37

  

Article V REPRESENTATIONS AND WARRANTIES OF MAA

  

 

38

  

 

Section 5.1

  

Organization and Qualification; Subsidiaries

  

 

38

  

 

Section 5.2

  

Organizational Documents

  

 

39

  

 

Section 5.3

  

Capital Structure

  

 

39

  

 

Section 5.4

  

Authority

  

 

40

  

 

Section 5.5

  

No Conflict; Required Filings and Consents

  

 

41

  

 

Section 5.6

  

Permits; Compliance with Law

  

 

42

  

 

Section 5.7

  

SEC Documents; Financial Statements

  

 

42

  

 

Section 5.8

  

Absence of Certain Changes or Events

  

 

43

  

 

Section 5.9

  

No Undisclosed Material Liabilities

  

 

43

  

 

Section 5.10

  

No Default

  

 

43

  

 

Section 5.11

  

Litigation

  

 

43

  

 

Section 5.12

  

Taxes

  

 

44

  

 

Section 5.13

  

Pension and Benefit Plans; Employees

  

 

46

  

 

Section 5.14

  

Labor and Employment Matters

  

 

47

  

 

Section 5.15

  

Information Supplied

  

 

48

  

 

Section 5.16

  

Intellectual Property

  

 

48

  

 

Section 5.17

  

Environmental Matters

  

 

49

  

 

Section 5.18

  

Properties

  

 

50

  

 

Section 5.19

  

Material Contracts

  

 

52

  

 

Section 5.20

  

Insurance

  

 

53

  

 

Section 5.21

  

Opinion of MAA Financial Advisor

  

 

53

  

 

Section 5.22

  

Vote Required

  

 

53

  

 

Section 5.23

  

Brokers

  

 

54

  

 

Section 5.24

  

Investment Company Act

  

 

54

  

 

Section 5.25

  

Takeover Statutes

  

 

54

  

 

Section 5.26

  

Related Party Transactions

  

 

54

  

 

ii


 

 

 

  

 

  

Page

 

 

Section 5.27

  

No Other Representations and Warranties

  

 

54

  

Article VI COVENANTS RELATING TO CONDUCT OF BUSINESS

  

 

54

  

 

Section 6.1

  

Conduct of Business by Post

  

 

54

  

 

Section 6.2

  

Conduct of Business by MAA

  

 

59

  

 

Section 6.3

  

No Control of Other Party’s Business

  

 

61

  

Article VII ADDITIONAL AGREEMENTS

  

 

62

  

 

Section 7.1

  

Preparation of Proxy Statement; Shareholders’ Meetings

  

 

62

  

 

Section 7.2

  

Access to Information

  

 

64

  

 

Section 7.3

  

Reasonable Best Efforts

  

 

65

  

 

Section 7.4

  

Acquisition Proposals; Changes in Recommendation

  

 

66

  

 

Section 7.5

  

Public Announcements

  

 

71

  

 

Section 7.6

  

Indemnification; Directors’ and Officers’ Insurance

  

 

71

  

 

Section 7.7

  

Appropriate Action; Consents

  

 

75

  

 

Section 7.8

  

Notification of Certain Matters; Transaction Litigation

  

 

75

  

 

Section 7.9

  

Pending Closing

  

 

76

  

 

Section 7.10

  

Section 16 Matters

  

 

76

  

 

Section 7.11

  

Delisting

  

 

76

  

 

Section 7.12

  

Director and Officer Resignations

  

 

77

  

 

Section 7.13

  

Certain Tax Matters

  

 

77

  

 

Section 7.14

  

Voting of Shares; Voting of Post OP Units

  

 

77

  

 

Section 7.15

  

Termination of Post Equity Incentive Plans, Post DRIP and Post ESPP

  

 

77

  

 

Section 7.16

  

Governance

  

 

78

  

 

Section 7.17

  

Tax Representation Letters

  

 

78

  

 

Section 7.18

  

Accrued Dividends

  

 

79

  

 

Section 7.19

  

Dividends

  

 

79

  

 

Section 7.20

  

Employment Matters

  

 

80

  

Article VIII CONDITIONS PRECEDENT

  

 

81

  

 

Section 8.1

  

Conditions to Each Party’s Obligation to Effect the Mergers

  

 

81

  

 

Section 8.2

  

Conditions to Obligations of the MAA Parties

  

 

82

  

 

Section 8.3

  

Conditions to Obligations of the Post Parties

  

 

83

  

Article IX TERMINATION AND AMENDMENT

  

 

83

  

 

Section 9.1

  

Termination

  

 

83

  

 

Section 9.2

  

Effect of Termination

  

 

85

  

 

Section 9.3

  

Termination Fees and Expense Amount

  

 

85

  

 

Section 9.4

  

Amendment

  

 

88

  

 

Section 9.5

  

Extension; Waiver

  

 

88

  

Article X GENERAL PROVISIONS

  

 

88

  

 

Section 10.1

  

Non-Survival of Representations, Warranties and Agreements

  

 

88

  

 

iii


 

 

 

  

 

  

Page

 

 

Section 10.2

  

Notices

  

 

89

  

 

Section 10.3

  

Counterparts

  

 

90

  

 

Section 10.4

  

Entire Agreement; No Third-Party Beneficiaries

  

 

90

  

 

Section 10.5

  

Severability

  

 

91

  

 

Section 10.6

  

Assignment

  

 

91

  

 

Section 10.7

  

Governing Law

  

 

91

  

 

Section 10.8

  

Specific Performance; Venue

  

 

91

  

 

Section 10.9

  

WAIVER OF JURY TRIAL

  

 

93

  

 

Section 10.10

  

Authorship

  

 

93

  

 

iv


EXHIBITS AND SCHEDULES

Exhibit A — Form of Mid-America Apartment Communities, Inc. Employee Waiver

Exhibit B — Form of Articles of Amendment to the Charter of MAA Designating and Fixing the Rights and Privileges of the MAA Series I Preferred Stock

Exhibit C-1 — Post Properties, Inc. Tax Representation Letter (Form 1)

Exhibit C-2 — Post Properties, Inc. Tax Representation Letter (Form 2)

Exhibit D-1 — Mid-America Apartment Communities, Inc. Tax Representation Letter (Form 1)

Exhibit D-2 — Mid-America Apartment Communities, Inc. Tax Representation Letter (Form 2)

Exhibit E — Form of Post Properties, Inc. REIT Opinion

Exhibit F — Form of Mid-America Apartment Communities, Inc. 368 Opinion

Exhibit G — Form of Mid-America Apartment Communities, Inc. REIT Opinion

Exhibit H — Form of Post Properties, Inc. 368 Opinion

Schedule A — Knowledge of Post Properties, Inc.

Schedule B — Knowledge of Mid-America Apartment Communities, Inc.

Post Properties, Inc. Disclosure Letter

Mid-America Apartment Communities, Inc. Disclosure Letter

 

v


AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of August 15, 2016 (this “ Agreement ”), is by and among MID-AMERICA APARTMENT COMMUNITIES, INC., a Tennessee corporation (“ MAA ”), MID-AMERICA APARTMENTS, L.P., a Tennessee limited partnership (“ MAA LP ”), POST PROPERTIES, INC., a Georgia corporation (“ Post ”), POST GP HOLDINGS, INC., a Georgia corporation (“ Post GP ”), and POST APARTMENT HOMES, L.P., a Georgia limited partnership (“ Post LP ”). MAA, MAA LP, Post, Post GP and Post LP are each sometimes referred to herein as a “ Party ” and collectively as the “ Parties ”. MAA and MAA LP are collectively referred to herein as the “ MAA Parties ”. Post, Post GP and Post LP are collectively referred to herein as the “ Post Parties ”.

WHEREAS, the board of directors of MAA (the “ MAA Board ”) and the board of directors of Post (the “ Post Board ”) have determined that it is in the best interests of their respective companies and respective shareholders for MAA and Post to combine their businesses by way of a merger of Post with and into MAA, with MAA being the surviving entity (the “ Parent Merger ”), on the terms and subject to the conditions set forth in this Agreement and in accordance with the Georgia Business Corporation Code (as amended, the “ GBCC ”) and the Tennessee Business Corporation Act (as amended, the “ TBCA ”);

WHEREAS, MAA, as the sole general partner of MAA LP, and Post GP, as the sole general partner of Post LP, deem it advisable and in the best interest of their respective limited partners for MAA LP and Post LP to combine their businesses by way of a merger of Post LP with and into MAA LP, with MAA LP being the surviving entity (the “ Partnership Merger ” and, together with the Parent Merger, the “ Mergers ”), on the terms and subject to the conditions set forth in this Agreement and in accordance with the Georgia Revised Uniform Limited Partnership Act (as amended, the “ GRULPA ”) and the Tennessee Revised Uniform Limited Partnership Act (as amended, the “ TRULPA ”);

WHEREAS, each of the MAA Board and the Post Board has taken all actions required for the execution of this Agreement by MAA and Post, respectively, and approved the consummation of the Mergers and the other transactions contemplated hereby upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, MAA, in its capacity as the general partner of MAA LP, and Post GP, in its capacity as the general partner of Post LP, have each taken all actions required for the execution of this Agreement by MAA LP and Post LP, respectively, and to approve the consummation by MAA LP and Post LP, respectively, of the transactions contemplated hereby;

WHEREAS, as an inducement to the Post Parties to enter into this Agreement, concurrently with the execution of this Agreement, certain of MAA’s employees have entered into an agreement, in the form attached hereto as Exhibit A (the “ MAA Employee Waivers ”), dated as of the date hereof, pursuant to which such employees have agreed, among other things, that the Mergers and the other transactions contemplated by this Agreement shall not constitute a change in control as defined in the employee’s applicable restricted stock and employment agreements;

WHEREAS, the Parties desire to make certain representations, warranties and agreements in connection with the execution of this Agreement and to prescribe various conditions to the Mergers; and

WHEREAS, for U.S. federal income tax purposes, it is intended that (i) the Parent Merger shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and this Agreement is intended to be and is adopted as a “plan of reorganization” with respect to the Parent Merger for purposes of Sections 354 and 361 of the Code, and (ii) the Partnership Merger shall qualify as and constitute an “asset-over” form of merger under Treasury Regulations Section 1.708-1(c)(3)(i) with MAA LP being the continuing partnership pursuant to Treasury Regulations Section 1.708-1(c)(1).


NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, intending to be legally bound, the Parties agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1  Definitions .

(a) For purposes of this Agreement:

Action ” means any claim, action, suit, proceeding, arbitration, mediation or other investigation.

Affiliate ” of a specified Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.

Business Day ” means any day other than a Saturday, Sunday or any day on which banks located in New York, New York are authorized or required to be closed.

CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

Closing Date ” means the Scheduled Closing Date or the Extended Closing Date, as applicable.

Confidentiality Agreement ” means the letter agreement, dated July 24, 2016, from MAA to Post and confirmed and agreed to by Post.

Employee Benefit Plan ” means any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) and any employment, consulting, termination, severance, change in control, separation, retention, stock option, restricted stock, restricted stock unit, profits interest unit, equity, outperformance, stock purchase, deferred compensation, bonus, incentive compensation, fringe benefit, health, medical, dental, vision, disability, accident, life insurance, welfare benefit, cafeteria, vacation, paid time off, perquisite, retirement, pension, profit sharing or savings or any other compensation or employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA, whether funded or unfunded, written or unwritten, for the benefit of any current or former employee, officer, manager, director or consultant.

Environmental Law ” means any Law (including common law) applicable to Post or MAA, as the case may be, relating to the pollution or protection of the environment (including air, surface water, groundwater, land surface or subsurface land), or human health or safety (as such matters relate to Hazardous Substances), including Laws relating to the use, handling, presence, transportation, treatment, storage, disposal, release or discharge of Hazardous Substances.

Environmental Permit ” shall mean any permit, approval, license or other authorization required under any applicable Environmental Law.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate ” means any entity, trade or business (whether or not incorporated) that, together with any other entity, trade or business (whether or not incorporated), is required to be treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

 

2


Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Expense Amount ” means an amount, not to exceed $10,000,000, equal to the sum of all documented reasonable and necessary Expenses paid or payable by any of the Post Parties or any of the MAA Parties, as applicable, in connection with this Agreement, the Mergers or any of the other transactions contemplated hereby.

Expenses ” means all expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a Party hereto and its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, and filing of the Form S-4, the preparation, printing, filing and mailing of the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Form S-4 and the Joint Proxy Statement, the solicitation of shareholder or partner approvals, engaging the services of the Exchange Agent, obtaining third party consents, any other filings with the SEC and all other matters related to the closing of the Mergers and the other transactions contemplated by this Agreement.

GAAP ” means the United States generally accepted accounting principles.

Governmental Authority ” means any United States (federal, state or local) or foreign government or arbitration panel, or any governmental or quasi-governmental, regulatory, judicial, or administrative authority, board, bureau, agency, commission or self-regulatory organization.

Hazardous Substances ” means (i) those substances listed in, defined in or regulated as hazardous, toxic, pollutants, contaminants or harmful to human health or the environment under any Environmental Law, including the following U.S. federal statutes and their state counterparts, as each may be amended from time to time, and all regulations thereunder: the Resource Conservation and Recovery Act, CERCLA, the Toxic Substances Control Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act and the Clean Air Act; (ii) petroleum and petroleum products, including crude oil and any fractions thereof; and (iii) polychlorinated biphenyls, mold, methane, asbestos, and radon.

Indebtedness ” shall mean, with respect to any Person, (i) all Indebtedness, notes payable, accrued interest payable or other obligations for borrowed money, whether secured or unsecured, (ii) all obligations under conditional sale or other title retention agreements, or incurred as financing, in either case with respect to property acquired by such Person, (iii) all obligations for the payment of the deferred purchase price for any property or assets, (iv) all obligations under capital leases, (v) all obligations in respect of bankers acceptances or letters of credit, (vi) all obligations under interest rate cap, swap, collar or similar transaction or currency hedging transactions, and (vii) any guarantee (other than customary non-recourse carve-out or “badboy” guarantees) of any of the foregoing, whether or not evidenced by a note, mortgage, bond, indenture or similar instrument.

Initial Period ” means the later of (a) 11:59 p.m. (New York time) on the thirtieth (30th) day after the date of this Agreement, and (b) 11:59 p.m. (New York time) on the first (1st) day after the end of all Notice Periods specified in Section 7.4(b)(iv) (including all subsequent Notice Periods as described in clauses (1) and (2) of Section 7.4(b)(iv)) applicable to a Superior Proposal from a particular Person (including as revised or modified); provided , however , that in the case of clause (b), an initial Notice of Recommendation Change with respect to such Superior Proposal shall have been provided on or prior to the thirtieth (30th) day after the date of this Agreement.

Intellectual Property ” shall mean all United States and foreign (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof, (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, Internet domain names, design rights and other source identifiers, together with the goodwill symbolized by any of the foregoing, (iii) copyrightable works and copyrights, (iv) confidential and proprietary information, including trade secrets, know-how, ideas, formulae, models and methodologies, (v) all rights in the foregoing and in other similar intangible assets, and (vi) all applications and registrations for the foregoing.

 

3


Investment Company Act ” means the Investment Company Act of 1940, as amended.

IRS ” means the United States Internal Revenue Service or any successor agency.

Knowledge ” (a) where used herein with respect to the Post Parties means the actual (and not constructive or imputed) knowledge of the persons named in Schedule A and (b) where used herein with respect to the MAA Parties means the actual (and not constructive or imputed) knowledge of the persons named in Schedule B .

Law ” means any and all domestic (federal, state or local) or foreign laws, rules, regulations, orders, judgments or decrees promulgated by any Governmental Authority.

Lien ” shall mean with respect to any asset (including any security), any mortgage, deed of trust, option, claim, condition, covenant, lien, right of way, easement, pledge, charge, security interest, preferential arrangement, right of first refusal or first offer or encumbrance of any kind.

MAA Bylaws ” means the Bylaws of MAA as amended and supplemented and in effect on the date hereof.

MAA Charter ” means the Amended and Restated Charter of MAA, as amended and supplemented and in effect on the date hereof.

MAA Common Stock ” means shares of common stock in MAA, par value $0.01 per share.

MAA Equity Incentive Plans ” means the MAA Amended and Restated 2013 Stock Incentive Plan, the MAA 2004 Stock Plan, the MAA 2012 Long Term Incentive Program, the MAA 2013 Long Term Incentive Program, the MAA 2014 Long Term Incentive Program, the MAA 2015 Long Term Incentive Program, the MAA 2016 Long Term Incentive Program, the MAA 2012 NEO Bonus Program, the MAA 2016 Annual Incentive Program, the Colonial Properties Trust 2008 Omnibus Incentive Plan, as amended, the MAA Non-Qualified Deferred Compensation Plan for Outside Company Directors, as amended, the MAA Employee Stock Ownership Plan, and the MAA Employee Stock Purchase Plan, as each may be amended from time to time.

MAA Leases ” means each lease or sublease (including any triple-net lease) for commercial or retail space under which MAA or a MAA Subsidiary is a lessor or sublessor with respect to each of the applicable MAA Properties, together with all amendments, modifications, supplements, renewals, exercise of options and extensions related thereto.

MAA LP Agreement ” means the Third Amended and Restated Agreement of Limited Partnership of MAA LP, dated as of October 1, 2013, as amended, modified or supplemented from time to time.

MAA Material Adverse Effect ” means any event, circumstance, change or effect (a) that is material and adverse to the business, assets, properties, financial condition or results of operations of MAA and the MAA Subsidiaries taken as a whole or (b) that will or would reasonably be expected to, prevent or materially impair the ability of the MAA Parties to consummate the Mergers in the manner contemplated hereby; provided, however, that for purposes of clause (a) “ MAA Material Adverse Effect ” shall not include any event, circumstance, change or effect to the extent arising out of or resulting from (i) any failure of MAA to meet any internal or external projections or forecasts or any estimates of earnings, revenues, or other metrics for any period (provided, that any event, circumstance, change or effect giving rise to such failure may be taken into account in determining whether there has been a MAA Material Adverse Effect if not otherwise falling into one of the other exceptions contained in this definition), (ii) any events, circumstances, changes or effects that affect the multifamily residential real estate REIT industry generally, (iii) any changes in the United States or global economy or capital, financial, banking, credit or securities markets generally, including changes in interest or exchange rates, (iv) any changes in the legal, tax, political or regulatory conditions, (v) the commencement, escalation or worsening of a war (whether or not declared) or armed hostilities or the occurrence of acts of terrorism or sabotage (including cyberterrorism or cyber-attacks), (vi) the negotiation, execution or

 

4


announcement of this Agreement, or the consummation or anticipation of consummation of the Mergers or the other transactions contemplated hereby, (vii) the taking of any action expressly required by, or the failure to take any action expressly prohibited by, this Agreement, or the taking of any action at the written request or with the prior written consent of an executive officer of Post, (viii) earthquakes, hurricanes, floods or other natural disasters, (ix) any damage or destruction of any assets or property of MAA or any MAA Subsidiary caused by casualty that is substantially covered by insurance, (x) changes in Law or GAAP or any interpretations thereof or any accounting principles, practices or policies that MAA or any MAA Subsidiary is required to adopt, (xi) any Action brought, asserted or threatened by or on behalf of any holder or holders of capital stock, units or other equity interests in MAA or any MAA Subsidiary arising out of or relating to this Agreement, the Mergers or any of the other transactions contemplated by this Agreement, or (xii) any continuation of an adverse trend or condition or the escalation of, or any developments with respect to, any Action listed on Section 1.1 of the MAA Disclosure Letter, which in the case of each of clauses (ii), (iii), (iv), (v) and (x) do not materially disproportionately affect MAA and the MAA Subsidiaries, taken as a whole, relative to other similarly situated participants in the multifamily residential real estate REIT industry in the United States, and in the case of clause (viii) do not materially disproportionately affect MAA and the MAA Subsidiaries, taken as a whole, relative to other participants in the multifamily residential real estate REIT industry in the geographic regions in which MAA and the MAA Subsidiaries operate or own or lease properties. The Parties agree that the mere fact of a decrease in the market price or a change in the trading volume of MAA Common Stock shall not, in and of itself, constitute a MAA Material Adverse Effect, but any event, circumstance, change or effect underlying such decrease or change shall be considered in determining whether there has been a MAA Material Adverse Effect if not otherwise falling into one of the other exceptions contained in this definition.

MAA OP Unit ” shall mean a limited partnership interest in MAA LP designated as a “Partnership Unit” under the MAA LP Agreement.

MAA Option ” means any option to purchase MAA Common Stock under the MAA Equity Incentive Plans or otherwise.

MAA Party ” means any of MAA or MAA LP.

MAA Series I Preferred Stock ” means MAA’s 8.50% Series I Cumulative Redeemable Preferred Shares, with the terms of the MAA Series I Preferred Stock set forth in articles of amendment to the MAA Charter substantially in the form set forth in Exhibit B , having the rights, preferences, privileges and voting powers substantially the same as those of the Post Preferred Stock immediately prior to the Parent Merger.

MAA Shareholder Meeting ” means the meeting of the holders of MAA Common Stock for the purpose of seeking the MAA Shareholder Approval, including any postponement or adjournment thereof.

MAA Subsidiary ” means MAA LP and any corporation, other partnership, limited liability company, joint venture, business trust, real estate investment trust or other organization, whether incorporated or unincorporated, or other legal entity of which (a) MAA and/or MAA LP directly or indirectly owns or controls at least a majority of the capital stock or other equity interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions, (b) MAA and/or any Person that is a MAA Subsidiary by reason of the application of clause (a) or clause (c) of this definition of “MAA Subsidiary” is a general partner, manager, managing member, trustee, director or the equivalent, or (c) MAA and/or MAA LP, directly or indirectly, holds a majority of the beneficial, equity, capital, profits or other economic interest.

NYSE ” means the New York Stock Exchange.

Order ” means a judgment, order or decree of any Governmental Authority.

Person ” or “ person ” means an individual, corporation, partnership, limited partnership, limited liability company, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or other entity or a Governmental Authority or a political subdivision, agency or instrumentality of a Governmental Authority.

 

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Post Articles of Incorporation ” means the Articles of Incorporation of Post, as amended and supplemented and in effect on the date hereof.

Post Bylaws ” means the Bylaws of Post, as amended and supplemented and in effect on the date hereof.

Post Common Stock ” means shares of common stock in Post, par value $.01 per share.

“Post Equity Incentive Plans” means the Post Amended and Restated 2003 Incentive Stock Plan, the Post Properties, Inc. 2003 Incentive Stock Plan, and the Post Deferred Compensation Plan for Directors and Eligible Employees, as each may be amended from time to time.

Post ESPP ” means Post’s 2015 Non-Qualified Employee Stock Purchase Plan, as amended.

Post Leases ” means each lease or sublease (including any triple-net lease) for commercial or retail space under which Post or a Post Subsidiary is a lessor or sublessor with respect to each of the applicable Post Properties, together with all amendments, modifications, supplements, renewals, exercise of options and extensions related thereto.

Post LP Agreement ” means the Second Amended and Restated Agreement of Limited Partnership of Post LP, dated as of October 24, 1997, as amended, modified or supplemented from time to time.

Post Material Adverse Effect ” means any event, circumstance, change or effect (a) that is material and adverse to the business, assets, properties, financial condition or results of operations of Post and the Post Subsidiaries taken as a whole or (b) that will or would reasonably be expected to, prevent or materially impair the ability of the Post Parties to consummate the Mergers in the manner contemplated hereby; provided , however , that for purposes of clause (a) “ Post Material Adverse Effect ” shall not include any event, circumstance, change or effect to the extent arising out of or resulting from (i) any failure of Post to meet any internal or external projections or forecasts or any estimates of earnings, revenues, or other metrics for any period ( provided , that any event, circumstance, change or effect giving rise to such failure may be taken into account in determining whether there has been a Post Material Adverse Effect if not otherwise falling into one of the other exceptions contained in this definition), (ii) any events, circumstances, changes or effects that affect the multifamily residential real estate REIT industry generally, (iii) any changes in the United States or global economy or capital, financial, banking, credit or securities markets generally, including changes in interest or exchange rates, (iv) any changes in the legal, tax, political or regulatory conditions, (v) the commencement, escalation or worsening of a war (whether or not declared) or armed hostilities or the occurrence of acts of terrorism or sabotage (including cyberterrorism or cyber-attacks), (vi) the negotiation, execution or announcement of this Agreement, or the consummation or anticipation of consummation of the Mergers or the other transactions contemplated hereby, (vii) the taking of any action expressly required by, or the failure to take any action expressly prohibited by, this Agreement, or the taking of any action at the written request or with the prior written consent of an executive officer of MAA, (viii) earthquakes, hurricanes, floods or other natural disasters, (ix) any damage or destruction of any assets or property of Post or any Post Subsidiary caused by casualty that is substantially covered by insurance, (x) changes in Law or GAAP or any interpretations thereof or any accounting principles, practices or policies that Post or any Post Subsidiary is required to adopt, (xi) any Action brought, asserted or threatened by or on behalf of any holder or holders of capital stock, units or other equity interests in Post or any Post Subsidiary arising out of or relating to this Agreement, the Mergers or any of the other transactions contemplated by this Agreement, or (xii) any continuation of an adverse trend or condition or the escalation of, or any developments with respect to, any Action listed on Section 1.1 of the Post Disclosure Letter, which in the case of each of clauses (ii), (iii), (iv), (v) and (x) do not materially disproportionately affect Post and the Post Subsidiaries, taken as a whole, relative to other similarly situated participants in the multifamily residential real estate REIT industry in the United States, and in the case of clause (viii) do not materially disproportionately affect Post and the Post Subsidiaries, taken as a whole, relative to other participants in the multifamily residential real estate REIT industry in the geographic regions in which Post and the Post Subsidiaries operate or own or lease properties. The Parties agree that the mere fact of a decrease in the market

 

6


price or a change in the trading volume of Post Common Stock shall not, in and of itself, constitute a Post Material Adverse Effect, but any event, circumstance, change or effect underlying such decrease or change shall be considered in determining whether there has been a Post Material Adverse Effect if not otherwise falling into one of the other exceptions contained in this definition.

Post OP Unit ” shall mean a limited partnership interest in Post LP designated as a “Partnership Unit” under the Post LP Agreement.

Post Option ” means any option to purchase Post Common Stock under the Post Equity Incentive Plans or otherwise.

Post Party ” means any of Post, Post GP or Post LP.

Post Preferred Unit ” shall mean a limited partnership interest in Post LP designated as a “Series A Preferred Partnership Unit” under the Post LP Agreement.

Post REIT Subsidiary ” shall mean each Post Subsidiary that is intended to be treated as a REIT for tax purposes.

Post Restricted Stock Award ” means an award of Post Common Stock granted under the Post Equity Incentive Plans that are unvested or subject to a substantial risk of forfeiture.

Post Shareholder Meeting ” means the meeting of the holders of Post Common Stock for the purpose of seeking the Post Shareholder Approval, including any postponement or adjournment thereof.

Post Subsidiary ” means Post GP, Post LP and any corporation, other partnership, limited liability company, joint venture, business trust, real estate investment trust or other organization, whether incorporated or unincorporated, or other legal entity of which (a) Post and/or Post LP directly or indirectly owns or controls at least a majority of the capital stock or other equity interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions, (b) Post and/or any Person that is a Post Subsidiary by reason of the application of clause (a) or clause (c) of this definition of “Post Subsidiary” is a general partner, manager, managing member, trustee, director or the equivalent, or (c) Post and/or Post LP, directly or indirectly, holds a majority of the beneficial, equity, capital, profits or other economic interest. For purposes of this Agreement, 1499 Massachusetts Avenue, Inc. shall be a Post Subsidiary.

Representative ” means, with respect to any Person, such Person’s directors, officers, employees, consultants, advisors (including attorneys, accountants, consultants, investment bankers, and financial advisors), agents and other representatives.

SEC ” means the United States Securities and Exchange Commission (including the staff thereof).

Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Subsidiary ” means the Post Subsidiary or the MAA Subsidiary, as applicable.

Tax ” or “ Taxes ” means any U.S. federal, state, local and foreign income, gross receipts, license, withholding, property, recording, stamp, transfer, sales, use, abandoned property, escheat, franchise, employment, payroll, excise, environmental and other taxes, tariffs or governmental charges of any nature whatsoever, together with penalties, interest or additions thereto.

 

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Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

Termination Fee ” means the Tier 1 Termination Fee or the Tier 2 Termination Fee, as applicable.

Third Party ” means any Person or group of Persons other than a Party to this Agreement or their respective Affiliates.

Tier 1 Termination Fee ” means, if payable by Post, $58,500,000, or if payable by MAA, $122,500,000 as the case may be, payable if: (a)(i) Post terminates this Agreement on or prior to the end of the Initial Period pursuant to Section 9.1(f)(i) to enter into an Acquisition Agreement with respect to a Superior Proposal, or (ii) MAA terminates this Agreement on or prior to the end of the Initial Period pursuant to Section 9.1(g)(i) to enter into an Acquisition Agreement with respect to a Superior Proposal, or (b)(i) MAA terminates this Agreement pursuant to Section 9.1(g)(ii) if on or prior to the end of the Initial Period the Post Board makes a Change in Post Recommendation or withdraws its recommendation in response to an Acquisition Proposal, or (ii) Post terminates this Agreement pursuant to Section 9.1(f)(ii) if on or prior to the end of the Initial Period the MAA Board makes a Change in MAA Recommendation or withdraws its recommendation in response to an Acquisition Proposal.

Tier 2 Termination Fee ” means, if payable by Post, $117,000,000, or if payable by MAA, $245,000,000, as the case may be, payable if Post or MAA, as applicable, shall be required to pay a Termination Fee pursuant to Section 9.3 in any circumstance that is not set forth in the definition of Tier 1 Termination Fee.

VWAP of MAA Common Stock ” shall mean the volume weighted average price of MAA Common Stock for the ten (10) trading days immediately prior to the Closing Date, starting with the opening of trading on the first trading day to the closing of the second to last trading day prior to the Closing Date, as reported by Bloomberg.

WARN Act ” means the Worker Adjustment and Retraining Notification Act of 1988, as amended, and any state law analogs or statutes of similar effect, including any statutes that require advance notice of plant closings, mass layoffs or similar group personnel or employment actions.

(b) The following terms have the respective meanings set forth in the sections set forth below opposite such term:

 

Defined Terms

  

Location of Definition

Acceptable Confidentiality Agreement

  

Section 7.4(b)(i)

Acquisition Agreement

  

Section 7.4(a)

Acquisition Proposal

  

Section 7.4(a)

Agreement

  

Preamble

Book-Entry Share

  

Section 3.1(b)

Certificate

  

Section 3.1(b)

Change in Post Recommendation

 

Change in MAA Recommendation

 

Citigroup

 

Claim

 

Claim Expenses

  

Section 7.4(b)(iii)

 

Section 7.4(b)(iii)

 

Section 5.21

 

Section 7.6(a)

 

Section 7.6(a)

Clarification Request

 

Closing

  

Section 7.4(e)(i)

 

Section 2.3(a)

Closing Acknowledgement

  

Section 2.3(b)(iii)

Closing Postponement Notice

  

Section 2.3(b)(ii)

 

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Defined Terms

  

Location of Definition

Code

  

Preamble

Condition Satisfaction Date

  

Section 2.3(a)

Continuing Employee

  

Section 7.20(a)

Delaware Courts

  

Section 10.8(a)

ESPP Participants

 

ESPP Suspension Date

  

Section 7.15(c)

 

Section 7.15(c)

Exchange Agent

  

Section 3.5(a)

Exchange Fund

  

Section 3.5(a)

Exchange Ratio

 

Extended Closing Date

 

Fee Payee

 

Fee Payor

  

Section 3.1(b)

 

Section 2.3(a)

 

Section 9.3(d)(i)

 

Section 9.3(d)(i)

Form S-4

  

Section 4.5(b)

Fractional Share Consideration

 

GBCC

 

GRULPA

  

Section 3.1(b)

 

Preamble

 

Preamble

Indemnified Parties

 

Indemnifying Parties

  

Section 7.6(a)

 

Section 7.6(a)

Initial Closing Documents

  

Section 2.3(b)(i)

Interim Period

  

Section 6.1(a)

Intervening Event Notice Period

  

Section 7.4(b)(v)

Joint Proxy Statement

  

Section 3.5(a)

JP Morgan

  

Section 4.21

Letter of Transmittal

  

Section 3.5(c)(i)

MAA

  

Preamble

MAA 368 Opinion

  

Section 8.2(f)

MAA Board

  

Preamble

MAA Disclosure Letter

  

Article V

MAA Employee Benefit Plan

 

MAA Employee Waivers

  

Section 5.13(a)

 

Preamble

MAA Insurance Policies

  

Section 5.20

MAA LP

  

Preamble

MAA Material Contract

  

Section 5.19(b)

MAA Parties

  

Preamble

MAA Permits

  

Section 5.6(a)

MAA Permitted Liens

  

Section 5.18(b)

MAA Preferred Stock

  

Section 5.3(a)

MAA Preferred Units

  

Section 3.2(b)

MAA Properties

  

Section 5.18(a)

MAA Recommendation

  

Section 5.4(b)

MAA REIT Opinion

  

Section 8.3(e)

MAA SEC Documents

 

MAA Shareholder Approval

  

Section 5.7(a)

 

Section 5.22

MAA Subsidiary Partnership

  

Section 5.12(g)

MAA Tax Protection Agreements

  

Section 5.12(g)

MAA Third Party

  

Section 5.18(h)

MAA Title Insurance Policies

  

Section 5.18(j)

Maximum Premium

  

Section 7.6(c)

Merger Consideration

  

Section 3.1(b)

Mergers

  

Preamble

New MAA OP Units

  

Section 3.2(a)

Notice of Recommendation Change

  

Section 7.4(b)(iv)

 

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Defined Terms

  

Location of Definition

Notice Period

  

Section 7.4(b)(iv)

Organizational Documents

  

Section 7.6(a)

Outside Date

 

Parent Merger

  

Section 9.1(c)

 

Preamble

Parent Merger Effective Time

  

Section 2.2(c)

Parties

  

Preamble

Partnership Merger

  

Preamble

Partnership Merger Effective Time

  

Section 2.1(c)

Plans and Specifications

  

Section 4.18(k)

Post

  

Preamble

Post 368 Opinion

  

Section 8.3(f)

Post Board

  

Preamble

Post Designees

  

Section 2.5

Post Development Contracts

  

Section 4.18(k)

Post Development Property

  

Section 4.18(k)

Post Disclosure Letter

 

Post DRIP

 

Post Employee Benefit Plans

  

Article IV

 

Section 4.3(c)

 

Section 4.13(a)

Post GP

  

Preamble

Post Insurance Policies

  

Section 4.20

Post LP

  

Preamble

Post Material Contract

  

Section 4.19(b)

Post Parties

  

Preamble

Post Partner Approval

  

Section 4.22

Post Pending Acquisitions

  

Section 6.1(b)(vii)

Post Permits

  

Section 4.6(a)

Post Permitted Liens

  

Section 4.18(b)

Post Preferred Stock

  

Section 4.3(a)

Post Properties

  

Section 4.18(a)

Post Recommendation

  

Section 4.4(b)

Post REIT Opinions

  

Section 8.2(e)

Post SEC Documents

  

Section 4.7(a)

Post Series A Preferred Stock

  

Section 4.3(a)

Post Shareholder Approval

  

Section 4.22

Post Subsidiary Partnership

  

Section 4.12(g)

Post Tax Protection Agreement

  

Section 4.12(g)

Post Third Party

  

Section 4.18(h)

Post Title Insurance Policies

  

Section 4.18(j)

Preferred Book-Entry Share

  

Section 3.1(e)

Preferred Certificates

  

Section 3.1(e)

Preferred Merger Consideration

  

Section 3.1(e)

Process Agent

  

Section 10.8(c)

Qualified REIT Subsidiary

 

Qualifying Income

  

Section 4.12(b)

 

Section 9.3(d)(i)

REIT

  

Section 4.12(b)

REIT Dividends

  

Section 7.19(b)

Scheduled Closing Date

  

Section 2.3(a)

Specified Action

  

Section 7.8(f)

Superior Proposal

  

Section 7.4(c)

Takeover Statutes

  

Section 4.25

Taxable REIT Subsidiary

TBCA

  

Section 4.12(b)

Preamble

 

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Defined Terms

  

Location of Definition

Transfer Taxes

  

Section 7.13(b)

TRULPA

  

Preamble

willful breach

  

Section 9.2

Section 1.2  Interpretation and Rules of Construction . In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

(a) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;

(b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

(c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation” unless the context expressly provides otherwise;

(d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement, except to the extent otherwise specified;

(e) the phrase “made available” in this Agreement means that the information referred to has been made available if requested by the Party to whom such information is to be made available;

(f) any pronoun shall include the corresponding masculine, feminine and neuter forms;

(g) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein; and

(h) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms.

ARTICLE II

THE MERGERS

Section 2.1  The Partnership Merger .

(a) Upon the terms and subject to satisfaction or waiver of the conditions set forth in this Agreement, and in accordance with the GRULPA and the TRULPA, at the Partnership Merger Effective Time, Post LP shall merge with and into MAA LP, with MAA LP continuing as the surviving entity. The Partnership Merger shall have the effects provided in this Agreement and as specified in the GRULPA and the TRULPA.

(b) The Parties shall cause the Partnership Merger to be consummated as soon as practicable on the Closing Date, and shall file (i) the certificate of merger with the Secretary of State of the State of Georgia in accordance with the GRULPA, in such form as required by, and executed in accordance with the relevant provisions of, the GRULPA, and (ii) the certificate of merger with the Secretary of State of the State of Tennessee in accordance with the TRULPA, in such form as required by, and executed in accordance with the relevant provisions of, the TRULPA. The Parties shall make all other filings, recordings or publications required, if any, under the GRULPA and the TRULPA in connection with the Partnership Merger.

(c) The Partnership Merger shall become effective upon the later of such time as the certificate of merger has been filed with the Secretary of State of the State of Georgia or the certificate of merger has been filed with the Secretary of State of the State of Tennessee, or such later time which the Parties hereto shall have agreed upon and designated in such filings in accordance with the GRULPA and the TRULPA as the effective

 

11


time of the Partnership Merger, but not to exceed thirty (30) days after the applicable certificate of merger has been accepted for record by the relevant governmental office (the “ Partnership Merger Effective Time ”).

Section 2.2  The Parent Merger .

(a) Upon the terms and subject to satisfaction or waiver of the conditions set forth in this Agreement, and in accordance with the applicable provisions of the GBCC and the TBCA, at the Parent Merger Effective Time, Post shall merge with and into MAA, with MAA continuing as the surviving entity. The Parent Merger will have the effects provided in this Agreement and as set forth in the GBCC and the TBCA.

(b) The Parties shall cause the Parent Merger to be consummated as soon as practicable on the Closing Date immediately after the Partnership Merger Effective Time, and shall file (i) the articles of merger with the Secretary of State of the State of Georgia in accordance with the GBCC, in such form as required by, and executed in accordance with the relevant provisions of, the GBCC, and (ii) the articles of merger with the Secretary of State of the State of Tennessee in accordance with the TBCA, in such form as required by, and executed in accordance with the relevant provisions of, the TBCA. The Parties shall make all other filings, recordings or publications, if any, required under the GBCC and the TBCA in connection with the Parent Merger.

(c) The Parent Merger shall become effective upon the later of such time as the articles of merger have been filed with the Secretary of State of the State of Georgia or the articles of merger have been filed with the Secretary of State of the State of Tennessee, or such later time which the Parties hereto shall have agreed upon and designated in such filings in accordance with the GBCC and the TBCA as the effective time of the Parent Merger, but not to exceed thirty (30) days after the applicable articles of merger have been accepted for record by the relevant governmental office (the “ Parent Merger Effective Time ”); it being understood and agreed that the Parties shall cause the Parent Merger Effective Time to occur on the Closing Date as soon as practicable following the Partnership Merger Effective Time.

Section 2.3  Closing .

(a) The closing (the “ Closing ”) of the Mergers will take place at the date and time mutually agreed upon by the Parties (but in no event later than the second (2nd) Business Day (the “ Scheduled Closing Date ”) after all the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied or waived at the Closing, but subject to the satisfaction or waiver of such conditions) shall have been satisfied or waived by the Party entitled to the benefit of the same) (the date on which such conditions (other than those conditions that by their nature are to be satisfied or waived at the Closing, but subject to the satisfaction or waiver of such conditions) are satisfied or waived being the “ Condition Satisfaction Date ”), or at such other date and time to be specified in writing by the Parties, provided , however , that, subject to the provisions of Section 2.3(b) , MAA may elect in writing by notice to Post in accordance with Section 2.3(b) at its discretion to schedule the Closing Date on the last Business Day of the calendar month during which the Condition Satisfaction Date occurs, or on the first Business Day of the immediately succeeding calendar month (the “ Extended Closing Date ”). The Closing shall take place at the offices of Goodwin Procter LLP, The New York Times Building, 620 Eighth Avenue, New York, NY 10018-1405, or at such other place as agreed to by the Parties.

(b) On the Scheduled Closing Date:

(i) (A) Post shall deliver to MAA the certificate contemplated by Section 8.2(c) certifying as to such matters as of the Scheduled Closing Date, (B) King & Spalding LLP shall deliver the Post REIT Opinions to MAA, (C) Goodwin Procter LLP shall deliver the MAA 368 Opinion to MAA, (D) MAA shall deliver to Post the certificate contemplated by Section 8.3(c) certifying as to such matters as of the Scheduled Closing Date, (E) Bass, Berry & Sims PLC shall deliver the MAA REIT Opinion to Post and (F) King & Spalding LLP shall deliver the Post 368 Opinion to Post (collectively, the “ Initial Closing Documents ”);

(ii) Following receipt of the Initial Closing Documents, if MAA elects to postpone the Scheduled Closing Date to the Extended Closing Date, MAA shall deliver to Post on the Scheduled Closing Date a written notice, which notice shall (A) expressly acknowledge the occurrence of the Condition Satisfaction Date, (B) state that

 

12


MAA has elected to postpone the Scheduled Closing Date to the Extended Closing Date and (C) expressly acknowledge the irrevocable waivers by the MAA Parties and the satisfaction of the closing conditions by the Post Parties as provided in Section 2.3(c)(i)(A)  (the “ Closing Postponement Notice ”); and

(iii) In the event that Post shall receive a Closing Postponement Notice from MAA, on the Scheduled Closing Date, Post shall be required to deliver to MAA on the Scheduled Closing Date a written acknowledgement, which acknowledgement shall (A) expressly acknowledge the occurrence of the Condition Satisfaction Date and (B) expressly acknowledge the irrevocable waivers by the Post Parties and the satisfaction of the closing conditions by the MAA Parties as provided in Section 2.3(c)(i)(B) (the “ Closing Acknowledgement ”).

(c) If, on the Scheduled Closing Date, the Initial Closing Documents are not delivered or MAA does not deliver a Closing Postponement Notice, then the Scheduled Closing Date shall be the Closing Date. If, on the Scheduled Closing Date, the Initial Closing Documents are delivered and MAA delivers its Closing Postponement Notice, then Post shall be required to deliver the Closing Acknowledgement and:

(i) (A) The conditions to the obligations of the MAA Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement set forth in Section 8.1(a) , Section 8.1(d) , Section 8.2(a) , Section 8.2(b) , Section 8.2(c) , Section 8.2(d) , Section 8.2(e) and Section 8.2(f) shall be deemed to be irrevocably satisfied in their entirety for purposes of the Closing with no further bring down of any such conditions and irrevocably waived by the MAA Parties in all respects (except to the extent of a failure of the condition set forth in Section 8.2(b) to be satisfied on or after the Scheduled Closing Date due to a willful breach by the Post Parties of an agreement or covenant contained in this Agreement occurring solely on or after the Scheduled Closing Date), and (B) the conditions to the obligations of the Post Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement set forth in Section 8.1(a) , Section 8.1(d) , Section 8.3(a) , Section 8.3(b) , Section 8.3(c) , Section 8.3(d) , Section 8.3(e) and Section 8.3(f) shall be deemed to be irrevocably satisfied in their entirety for purposes of the Closing with no further bring down of any such conditions and irrevocably waived by the Post Parties in all respects (except to the extent of a failure of the condition set forth in Section 8.3(b) to be satisfied on or after the Scheduled Closing Date due to a willful breach by the MAA Parties of an agreement or covenant contained in this Agreement occurring solely on or after the Scheduled Closing Date);

(ii) On the Extended Closing Date, the only conditions to the obligations of the MAA Parties and the Post Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement shall be the satisfaction of the conditions set forth in Section 8.1(b) and Section 8.1(c) and as set forth in Section 2.3(c)(iii) below;

(iii) (A) Post shall, on the Extended Closing Date, as a condition to the obligations of the MAA Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement, deliver a certificate to the MAA Parties certifying that, on and after the Scheduled Closing Date through and including the Extended Closing Date, the Post Parties have not willfully breached any agreement or covenant contained in this Agreement such that the condition set forth in Section 8.2(b) shall not be satisfied as of the Extended Closing Date, and (B) MAA shall, on the Extended Closing Date, as a condition to the obligations of the Post Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement, deliver a certificate to the Post Parties certifying that, on and after the Scheduled Closing Date through and including the Extended Closing Date, the MAA Parties have not willfully breached any agreement or covenant contained in this Agreement such that the condition set forth in Section 8.3(b) shall not be satisfied as of the Extended Closing Date; and

(iv) (A) The MAA Parties’ right to terminate this Agreement pursuant to Section 9.1(c) , Section 9.1(d) (except with respect to a willful breach by the Post Parties of an agreement or covenant contained in this Agreement on or after the Scheduled Closing Date with respect to the condition set forth in Section 8.2(b) ), Section 9.1(e) or Section 9.1(g) shall be deemed to be irrevocably waived by the MAA Parties in all respects, and (B) the Post Parties’ right to terminate this Agreement pursuant to Section 9.1(c) , Section 9.1(d) (except with respect to a willful breach by the MAA Parties of an agreement or covenant contained in this Agreement

 

13


on or after the Scheduled Closing Date with respect to the condition set forth in Section 8.3(b) ), Section 9.1(e) or Section 9.1(f) shall be deemed to be irrevocably waived by the Post Parties in all respects.

Section 2.4  Governing Documents . The MAA Charter and MAA Bylaws as in effect immediately prior to the Parent Merger Effective Time shall be the charter and bylaws of MAA immediately following the Parent Merger Effective Time, until further amended in accordance with applicable Law. The limited partnership agreement of MAA LP, as in effect immediately prior to the Partnership Merger Effective Time shall be the limited partnership agreement of MAA LP immediately following the Partnership Merger Effective Time, until thereafter amended in accordance with the provisions thereof and in accordance with applicable Law. Nothing in this Section 2.4 shall affect in any way the indemnification or other obligations provided for in Section 7.6 .

Section 2.5  Board of Directors . Immediately following the Parent Merger Effective Time, the MAA Board shall be increased to thirteen (13) members and the MAA Board shall fill the three (3) newly created vacancies by immediately appointing to the MAA Board the three (3) members designated by the Post Board pursuant to Section 7.16(b) (the “ Post Designees ”), to serve until the 2017 annual meeting of MAA’s shareholders (and until their successors have been duly elected and qualified) and who shall be nominated by the MAA Board for reelection at the 2017 annual meeting of MAA’s shareholders, subject to the satisfaction and compliance of such Post Designees with MAA’s then-current corporate governance guidelines and code of business conduct and ethics.

Section 2.6  Tax Consequences . It is intended that, for U.S. federal income tax purposes, the Parent Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Code, and that this Agreement be, and is hereby adopted as, a plan of reorganization for purposes of Section 354 and 361 of the Code. It is further intended for U.S. federal income tax purposes that the Partnership Merger shall qualify as and constitute an “asset-over” form of merger governed by Treasury Regulations Section 1.708-1(c)(3)(i), with MAA LP being the continuing partnership pursuant to Treasury Regulations Section 1.708-1(c)(1) whereby Post LP will be treated as contributing its assets to MAA LP in exchange for MAA LP interests, followed by a distribution by Post LP of the MAA LP interests in liquidation of Post LP.

ARTICLE III

EFFECTS OF THE MERGERS

Section 3.1  Effects on Shares . At the Parent Merger Effective Time and by virtue of the Parent Merger and without any further action on the part of MAA, Post, or the holders of any securities of MAA or Post:

(a) Cancellation of Post Common Stock. Each share of Post Common Stock issued and outstanding immediately prior to the Parent Merger Effective Time that is held by MAA, any MAA Subsidiary or any wholly owned Post Subsidiary shall no longer be outstanding and shall automatically be retired and shall cease to exist, and no payment shall be made with respect thereto.

(b) Conversion of Post Common Stock. Subject to Section 3.4(b) , each share of Post Common Stock issued and outstanding immediately prior to the Parent Merger Effective Time (other than shares to be cancelled in accordance with Section 3.1(a) ) shall automatically be converted into the right to receive 0.71 (as the same may be adjusted pursuant to Section 3.3 , the “ Exchange Ratio ”) validly issued, fully paid and non-assessable shares of MAA Common Stock (the “ Merger Consideration ”), without interest, subject to any applicable withholding Tax. All shares of Post Common Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate (a “ Certificate ”) or book-entry share registered in the transfer books of Post (a “ Book-Entry Share ”) that immediately prior to the Parent Merger Effective Time represented shares of Post Common Stock shall cease to have any rights with respect to such shares of Post Common Stock other than the right to receive the Merger Consideration in accordance with Section 3.5 , including the right, if any, to receive, pursuant to Section 3.8 , cash in lieu of fractional shares of MAA Common Stock into which such shares of Post Common Stock have been converted pursuant to this Section 3.1(b) (the “ Fractional Share Consideration ”), together with the amounts, if any, payable pursuant to Section 3.5(d) .

 

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(c)  Share Transfer Books . At the Parent Merger Effective Time, the share transfer books of Post shall be closed and thereafter there shall be no further registration of transfers of the shares of Post Common Stock or the shares of Post Series A Preferred Stock. From and after the Parent Merger Effective Time, persons who held shares of Post Common Stock or Post Series A Preferred Stock immediately prior to the Parent Merger Effective Time shall cease to have rights with respect to such shares, except as otherwise provided for herein. On or after the Parent Merger Effective Time, any Certificates or Book-Entry Shares of Post presented to the Exchange Agent, MAA or the transfer agent for any reason shall be exchanged as provided in this Article III with respect to the shares of Post Common Stock and the shares of Post Series A Preferred Stock formerly represented thereby.

(d) MAA Common Stock. Each share of MAA Common Stock outstanding immediately prior to the Parent Merger Effective Time shall remain outstanding following the Parent Merger Effective Time.

(e) Conversion of Post Preferred Stock. Each share of the Post Series A Preferred Stock issued and outstanding immediately prior to the Parent Merger Effective Time shall be automatically converted into the right to receive one newly issued share of MAA Series I Preferred Stock (the “ Preferred Merger Consideration ”), without interest, subject to any applicable withholding Tax. All shares of Post Series A Preferred Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate (a “ Preferred Certificate ”) or book-entry share registered in the transfer books of Post (a “ Preferred Book-Entry Share ”) that immediately prior to the Parent Merger Effective Time represented shares of Post Series A Preferred Stock shall cease to have any rights with respect to such shares of Post Series A Preferred Stock other than the right to receive the Preferred Merger Consideration in accordance with Section 3.5 .

Section 3.2  Effects on Partnership Interests.

(a) Conversion of Post OP Units. At the Partnership Merger Effective Time, by virtue of the Partnership Merger and without any further action on the part of MAA LP, Post LP or the holders of Post OP Units or MAA OP Units, (i) the interests of the general partner in Post LP (other than the Post OP Units held by Post, which shall be converted pursuant to clause (ii) hereof) shall be cancelled and no payment shall be made with respect thereto, and (ii) each Post OP Unit issued and outstanding immediately prior to the Partnership Merger Effective Time shall automatically be converted into validly issued Class A Common Units in MAA LP (“ New MAA OP Units ”) in an amount equal to (A) one (1), multiplied by (B) the Exchange Ratio, and each holder of New MAA OP Units shall be admitted as a limited partner of MAA LP in accordance with the terms of the limited partnership agreement of MAA LP following the Partnership Merger Effective Time.

(b) Conversion of Post Preferred Units. At the Partnership Merger Effective Time, by virtue of the Partnership Merger and without any further action on the part of MAA LP, Post LP, or the holders of Post OP Units, MAA OP Units or Post Preferred Units, each Post Preferred Unit issued and outstanding immediately prior to the Partnership Merger Effective Time shall automatically be converted into one validly issued preferred unit in MAA LP (“ MAA Preferred Units ”) in accordance with the terms of the limited partnership agreement of MAA LP, having the rights, preferences, privileges and voting powers substantially the same as those of the Post Preferred Units immediately prior to the Partnership Merger.

Section 3.3  Adjustments . Without limiting the other provisions of this Agreement and subject to Section 6.1(b)(ii) and Section 6.1(b)(iii) , if at any time during the period between the date of this Agreement and the Parent Merger Effective Time, Post should split, combine or otherwise reclassify the shares of Post Common Stock, or make a dividend or other distribution in shares of Post Common Stock (including any dividend or other distribution of securities convertible into shares of Post Common Stock), or engage in a reclassification, reorganization, recapitalization or exchange or other like change, then (without limiting any other rights of the other Parties hereunder), the Exchange Ratio shall be ratably adjusted to reflect fully the effect of any such change. Without limiting the other provisions of this Agreement and subject to Section 6.2(b)(ii) and Section 6.2(b)(iii) , if at any time during the period between the date of this Agreement and the Parent Merger Effective Time, MAA should split, combine or otherwise reclassify the MAA Common Stock, or make a distribution in

 

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shares of MAA Common Stock (including any dividend or other distribution of securities convertible into MAA Common Stock), or engage in a reclassification, reorganization, recapitalization or exchange or other like change (without limiting any other rights of the other Parties hereunder), then the Exchange Ratio shall be ratably adjusted to reflect any such change.

Section 3.4  Post Options and Restricted Stock .

(a) At the Parent Merger Effective Time, each outstanding Post Option will vest in full and will be assumed by MAA by virtue of the Parent Merger and without any action on the part of the holder thereof. Subject to, and in accordance with, the terms of the applicable Post Equity Incentive Plan and award agreement or other agreement or other document evidencing Post Options, from and after the Parent Merger Effective Time, each Post Option so assumed by MAA under this Agreement will otherwise continue to have, and be subject to, the same terms and conditions, other than vesting, as were applicable to the corresponding Post Option immediately prior to the Parent Merger Effective Time as set forth in the applicable Post Equity Incentive Plan (including any applicable award agreement, other agreement or other document evidencing such Post Option) immediately prior to the Parent Merger Effective Time, except that, from and after the Parent Merger Effective Time, (A) each Post Option will be exercisable for that number of whole shares of MAA Common Stock equal to the product of the number of shares of Post Common Stock that were subject to such Post Option immediately prior to the Parent Merger Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of MAA Common Stock and (B) the per share exercise price for the shares of MAA Common Stock issuable upon exercise of such assumed Post Option will be equal to the quotient determined by dividing the exercise price of each share of Post Common Stock subject to such assumed Post Option by the Exchange Ratio, rounded up to the nearest whole cent.

(b) Immediately prior to the Parent Merger Effective Time, any and all outstanding issuance and forfeiture conditions on any shares of Post Common Stock subject to Post Restricted Stock Awards shall be deemed satisfied in full, contingent upon the closing of the Parent Merger, as stated in the Post Equity Incentive Plans, and such shares of Post Common Stock will be entitled to receive the Merger Consideration pursuant to Section 3.1(b) .

(c) Prior to the Parent Merger Effective Time, Post and MAA agree that Post shall, and shall be permitted under this Agreement to, take all corporate action necessary to effectuate the provisions of this Section 3.4 . From and after the Parent Merger Effective Time, unless the compensation committee of the MAA Board determines otherwise, all references to Post in the Post Equity Incentive Plans and in each agreement evidencing any Post Options or any other Post equity-based award, shall be deemed (i) for all purposes relating to employment, consultancy or directorship (or words of similar meaning) to refer to MAA and its Subsidiaries and (ii) for all other purposes, to refer to MAA.

Section 3.5  Exchange of Certificates .

(a) Not less than five (5) days prior to dissemination of a joint proxy statement in preliminary and definitive form relating to the Post Shareholder Meeting and the MAA Shareholder Meeting (together with any amendments or supplements thereto, the “ Joint Proxy Statement ”), MAA shall appoint a bank or trust company reasonably satisfactory to Post to act as exchange agent (the “ Exchange Agent ”) for the payment and delivery of the Merger Consideration, the Preferred Merger Consideration and the Fractional Share Consideration, as provided in Section 3.1(b) , Section 3.1(e) and Section 3.8 . On or before the Partnership Merger Effective Time, MAA shall deposit, or cause to be deposited, with the Exchange Agent (i) evidence of MAA Common Stock in book-entry form issuable pursuant to Section 3.1(b) equal to the aggregate Merger Consideration, (ii) evidence of MAA Series I Preferred Stock in book-entry form issuable pursuant to Section 3.1(e) equal to the aggregate Preferred Merger Consideration, and (iii) cash in immediately available funds in an amount sufficient to pay the Fractional Share Consideration and any dividends under Section 3.5(d) (such evidence of book-entry shares of MAA Common Stock, evidence of book-entry shares of MAA Series I Preferred Stock, and cash amounts, together with any dividends or other distributions with respect thereto, the “ Exchange Fund ”), in each case, for

 

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the sole benefit of the holders of shares of Post Common Stock and shares of Post Series A Preferred Stock, as applicable. MAA shall cause the Exchange Agent to make, and the Exchange Agent shall make, delivery of the Merger Consideration and Preferred Merger Consideration, payment of the Fractional Share Consideration and any amounts payable in respect of dividends or other distributions on shares of MAA Common Stock or MAA Series I Preferred Stock in accordance with Section 3.5(d) out of the Exchange Fund in accordance with this Agreement. The Exchange Fund shall not be used for any other purpose.

(b) The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by MAA. Interest and other income on the Exchange Fund shall be the sole and exclusive property of MAA. No investment of the Exchange Fund shall relieve MAA or the Exchange Agent from making the payments required by this Article III , and following any losses from any such investment, MAA shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy MAA’s obligations hereunder for the benefit of the holders of shares of Post Common Stock and Post Series A Preferred Stock at the Parent Merger Effective Time, which additional funds will be deemed to be part of the Exchange Fund.

(c) Exchange Procedures.

(i) As promptly as practicable following the Parent Merger Effective Time (but in no event later than two (2) Business Days thereafter), MAA shall cause the Exchange Agent to mail (and to make available for collection by hand) to each holder of record of a Certificate or Book-Entry Share, or of a Preferred Certificate or Preferred Book-Entry Share, as applicable, (A) a letter of transmittal (a “ Letter of Transmittal ”) which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares, or to the Preferred Certificates or Preferred Book-Entry Shares, as applicable, shall pass only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, or the Preferred Certificates (or affidavits of loss in lieu thereof) or Preferred Book-Entry Shares, as applicable, to the Exchange Agent, which Letter of Transmittal shall be in such form and have such other customary provisions as MAA and Post may reasonably agree upon, and (B) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, or the Preferred Certificates (or affidavits of loss in lieu thereof) or Preferred Book-Entry Shares, as applicable, in exchange for the Merger Consideration or Preferred Merger Consideration, as applicable, into which the number of shares of Post Common Stock previously represented by such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, or, as applicable, the number of shares of Post Series A Preferred Stock previously represented by such Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, shall have been converted pursuant to this Agreement, together with any amounts payable in respect of the Fractional Share Consideration in accordance with Section 3.8 and dividends or other distributions on shares of MAA Common Stock or MAA Series I Preferred Stock in accordance with Section 3.5(d) .

(ii) Upon surrender of a Certificate (or an affidavit of loss in lieu thereof) or Book-Entry Share, or a Preferred Certificate (or an affidavit of loss in lieu thereof) or Preferred Book-Entry Share, as applicable, to the Exchange Agent, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, or such Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, as applicable, shall be entitled to receive in exchange therefor the Merger Consideration for each share of Post Common Stock formerly represented by such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, or, as applicable, the Preferred Merger Consideration for each share of Post Series A Preferred Stock formerly represented by such Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, in each case pursuant to the provisions of this Article III , plus any Fractional Share Consideration that such holder has the right to receive pursuant to the provisions of Section 3.8 and any amounts that such holder has the right to receive in respect of dividends or other distributions on shares of MAA Common Stock or MAA Series I Preferred Stock in accordance with Section 3.5(d) to be mailed or delivered by wire transfer, within two (2) Business Days following the later to occur of (A) the Parent Merger Effective Time or (B) the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or Book-Entry

 

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Share, or, as applicable, such Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, or, applicable, the Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, so surrendered shall be forthwith cancelled. The Exchange Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, or, as applicable, such Preferred Certificates (or affidavits of loss in lieu thereof) or Preferred Book-Entry Shares, upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with customary exchange practices. Until surrendered as contemplated by this Section 3.5 , each Certificate (or affidavit of loss in lieu thereof) and Book-Entry Share, or, as applicable, each Preferred Certificate (or affidavit of loss in lieu thereof) and Preferred Book-Entry Share, shall be deemed, at any time after the Parent Merger Effective Time, to represent only the right to receive, upon such surrender, the Merger Consideration or the Preferred Merger Consideration, as applicable, as contemplated by this Article III . No interest shall be paid or accrued for the benefit of holders of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, or the holders of the Preferred Certificates (or affidavits of loss in lieu thereof) or Preferred Book-Entry Shares, on the Merger Consideration, the Preferred Merger Consideration or the Fractional Share Consideration, as applicable, payable upon the surrender of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, or, as applicable, the Preferred Certificates (or affidavits of loss in lieu thereof) or Preferred Book-Entry Shares, and, in either case, any distributions to which such holder is entitled pursuant to Section 3.5(d) hereof.

(iii) In the event of a transfer of ownership of shares of Post Common Stock or Post Series A Preferred Stock that is not registered in the transfer records of Post, it shall be a condition of payment that any Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, or, as applicable, any Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, surrendered in accordance with the procedures set forth in this Section 3.5(c) shall be properly endorsed or shall be otherwise in proper form for transfer, and that the Person requesting such payment shall have paid any transfer Taxes and other Taxes required by reason of the payment of the Merger Consideration or Preferred Merger Consideration, as applicable, to a Person other than the registered holder of the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, or, as applicable, the Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, surrendered or shall have established to the reasonable satisfaction of MAA that such Tax either has been paid or is not applicable.

(d) Dividends with Respect to MAA Common Stock and MAA Series I Preferred Stock. No dividends or other distributions with respect to MAA Common Stock or MAA Series I Preferred Stock with a record date after the Parent Merger Effective Time shall be paid to the holder of any unsurrendered Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share with respect to the shares of MAA Common Stock issuable hereunder or to the holder of any unsurrendered Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share with respect to the shares of MAA Series I Preferred Stock issuable hereunder, and all such dividends and other distributions shall be paid by MAA to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share with respect to the shares of MAA Common Stock issuable hereunder or the surrender of such Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share with respect to the shares of MAA Series I Preferred Stock issuable hereunder (or, in either case, affidavit of loss in lieu thereof) in accordance with this Agreement. Subject to applicable Laws, following surrender of any such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share or, as applicable, Preferred Certificate (or affidavit of loss in lieu thereof) or Preferred Book-Entry Share, there shall be paid to the holder thereof, without interest, (i) the amount of dividends or other distributions with a record date after the Parent Merger Effective Time theretofore paid with respect to such shares of MAA Common Stock or MAA Series I Preferred Stock to which such holder is entitled pursuant to this Agreement and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Parent Merger Effective Time but prior to such surrender and with a payment date subsequent to such surrender payable with respect to such shares of MAA Common Stock or MAA Series I Preferred Stock.

 

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(e) Termination of Exchange Fund. Any portion of the Exchange Fund (including any Fractional Share Consideration and any applicable dividends or other distributions with respect to MAA Common Stock or MAA Series I Preferred Stock) which remains undistributed to the holders of shares of Post Common Stock or Post Series A Preferred Stock, as applicable, for twelve (12) months after the Parent Merger Effective Time shall be delivered to MAA, upon demand, and any former holders of shares of Post Common Stock or Post Series A Preferred Stock prior to the Parent Merger who have not theretofore complied with this Article III shall thereafter look only to MAA for payment of the Merger Consideration or Preferred Merger Consideration, as applicable.

(f) No Liability. None of the MAA Parties, the Post Parties, the Exchange Agent, or any employee, officer, director, agent or Affiliate thereof, shall be liable to any person in respect of the Merger Consideration or the Preferred Merger Consideration, as applicable, if the Exchange Fund has been delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of any such shares immediately prior to the time at which such amounts would otherwise escheat to, or become property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of MAA, free and clear of any claims or interest of such holders or their successors, assigns or personal representatives previously entitled thereto.

Section 3.6  Withholding Rights . The Parties, their respective Affiliates and the Exchange Agent, as applicable, shall be entitled to deduct and withhold from the Merger Consideration, the Fractional Share Consideration and the Preferred Merger Consideration, as applicable (and any other consideration otherwise payable pursuant to this Agreement or deemed paid for Tax purposes), such amounts as it is required to deduct and withhold with respect to such payments under the Code or any other provision of state, local or foreign Law. Any such amounts so deducted and withheld shall be paid over to the applicable Governmental Authority in accordance with applicable Law and shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.

Section 3.7 Structure .

(a) Each Party hereto shall reasonably cooperate with and agree to any reasonable changes requested by the other Parties regarding the structure of the transactions contemplated herein, which cooperation shall include entering into appropriate amendments to this Agreement, to reflect the change; provided , that no such change shall (i) alter or change the amount or kind of the consideration to be issued to holders of Post Common Stock or Post OP Units as currently contemplated in this Agreement, (ii) reasonably be anticipated to impose any material impediment or delay, or condition to, consummation of the Mergers, (iii) adversely affect, including with respect to federal income tax treatment, any of the parties hereto or the holders of Post Common Stock or Post OP Units in connection with the Mergers, (iv) require submission to or approval by holders of Post Common Stock after the Post Shareholder Approval or to holders of MAA Common Stock after the MAA Shareholder Approval or (v) require submission to or approval by holders of Post OP Units (other than to the extent solely from Post or a Post Subsidiary (including Post GP and Post LP Holdings, Inc.), as general partner and/or limited partner of Post LP).

(b) Subject to the limitations set forth in Section 3.7(a) , MAA shall have the right, in its sole discretion, to cause the timing of the consummation of the Partnership Merger and Parent Merger to be re-ordered so that the Partnership Merger shall occur and be consummated following the consummation of the Parent Merger (and, therefore, the Partnership Merger Effective Time will occur following the Parent Merger Effective Time).

(c) Subject to the limitations set forth in Section 3.7(a) , MAA shall have the right, in its sole discretion, to cause the structure of the Partnership Merger to be changed from a direct merger of Post LP with and into MAA LP with MAA LP continuing as the surviving entity, to a merger of a newly-formed wholly-owned subsidiary of MAA LP with and into Post LP with Post LP continuing as the surviving entity and a subsidiary of MAA LP; provided , that any such newly-formed subsidiary of MAA LP shall sign a joinder to this Agreement.

 

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Section 3.8  Fractional Shares . No certificate or scrip representing fractional shares of MAA Common Stock shall be issued upon the surrender for exchange of Certificates or the transfer of Book-Entry Shares, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of MAA. Notwithstanding any other provision of this Agreement, each holder of shares of Post Common Stock converted pursuant to the Parent Merger who would otherwise have been entitled to receive a fraction of a share of MAA Common Stock shall receive, in lieu thereof, cash, without interest, in an amount equal to such fractional part of a share of MAA Common Stock multiplied by the VWAP of MAA Common Stock.

Section 3.9  Lost Certificates . If any Certificate or Preferred Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the Person claiming such Certificate or Preferred Certificate to be lost, stolen or destroyed and, if required by MAA, the posting by such Person of a bond in such reasonable amount as MAA may direct, as indemnity against any claim that may be made against it with respect to such Certificate or Preferred Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate or Preferred Certificate, as applicable, the Merger Consideration, the Fractional Share Consideration, the Preferred Merger Consideration and any distributions to which such holder is entitled pursuant to this Article III .

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF POST

Except (a) as set forth in the disclosure letter that has been prepared by the Post Parties and delivered by the Post Parties to the MAA Parties in connection with the execution and delivery of this Agreement (the “ Post Disclosure Letter ”) (it being agreed that (i) disclosure of any item in any section of the Post Disclosure Letter with respect to any Section or subsection of Article IV of this Agreement shall be deemed disclosed with respect to any other Section or subsection of Article IV of this Agreement to the extent such relationship is reasonably apparent; provided , that nothing in the Post Disclosure Letter is intended to broaden the scope of any representation or warranty of the Post Parties made herein and (ii) no reference to or disclosure of any item or other matter in the Post Disclosure Letter shall be construed as an admission or indication that (A) such item or other matter is material, (B) such item or other matter is required to be referred to or disclosed in the Post Disclosure Letter or (C) any breach or violation of applicable Laws or any contract, agreement, arrangement or understanding to which Post or any of the Post Subsidiaries is a party exists or has actually occurred), or (b) other than with respect to representations or warranties set forth in Section 4.12 , as disclosed in publicly available Post SEC Documents filed with, or furnished to, as applicable, the SEC on or after January 1, 2013 and prior to the date of this Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” (but including any description of historic facts or events included therein) and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer (but including any description of historic facts or events included therein) or other statements that are predictive or forward-looking in nature), the Post Parties hereby jointly and severally represent and warrant to the MAA Parties that:

Section 4.1 Organization and Qualification; Subsidiaries.

(a) Post is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Georgia and has the requisite organizational power and authority and any necessary governmental authorization to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. Post is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

 

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(b) Each Post Subsidiary is duly organized, validly existing and in good standing (to the extent applicable) under the Laws of the jurisdiction of its incorporation or organization, as the case may be, and has the requisite organizational power and authority and any necessary governmental authorization to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

(c) Section 4.1(c) of the Post Disclosure Letter sets forth a true and complete list of the Post Subsidiaries and their respective jurisdiction of incorporation or organization, as the case may be, and the type of and percentage of interest held, directly or indirectly, by Post in each Post Subsidiary.

(d) Except as set forth in Section 4.1(d) of the Post Disclosure Letter, neither Post nor any Post Subsidiary directly or indirectly owns any interest or investment (whether equity or debt) in any Person (other than in the Post Subsidiaries and investments in short-term investment securities).

Section 4.2  Organizational Documents . There are no current or pending dissolution, liquidation, forfeiture or revocation proceedings regarding Post or any of the Post Subsidiaries. Post has made available to MAA complete and correct copies of (i) the Post Articles of Incorporation and Post Bylaws and (ii) the Post LP Agreement and the certificate of limited partnership of Post LP, in each case as in effect on the date hereof, and all such organizational documents are in full force and effect.

Section 4.3  Capital Structure .

(a) The authorized capital stock of Post consists of 100,000,000 shares of Post Common Stock and 20,000,000 shares of preferred stock, par value $.01 per share (“ Post Preferred Stock ”), of which 1,150,000 shares are designated as 8  12 % Series A Cumulative Redeemable Preferred Shares with a liquidation preference of $50 per share (“ Post Series A Preferred Stock ”). At the close of business on August 12, 2016, (i) 53,506,370.0653 shares of Post Common Stock were issued and outstanding, (ii) 867,846 shares of Post Series A Preferred Stock were issued and outstanding and no other shares of Post Preferred Stock were issued or outstanding, (iii) 159,210 shares of Post Common Stock were reserved for issuance pursuant to the terms of outstanding options granted pursuant to the Post Equity Incentive Plans and (iv) 113,064 shares of Post Common Stock were reserved for issuance upon redemption of Post OP Units. All issued and outstanding shares of the capital stock of Post are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock is entitled to preemptive rights. There are no outstanding bonds, debentures, notes or other Indebtedness of Post having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter on which holders of shares of Post Common Stock may vote. Section 4.3(a) of the Post Disclosure Letter sets forth a complete and correct list, as of the date of this Agreement, of the total number of outstanding Post Options under the Post Equity Incentive Plans and the number of shares of Post Common Stock subject to each outstanding Post Option, the exercise price, and the grant date. There are no other rights to purchase or receive shares of Post Common Stock granted under the Post Equity Incentive Plans or otherwise other than the Post Options.

(b) All of the outstanding shares of capital stock of each of the Post Subsidiaries that is a corporation are duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Post Subsidiaries that is a partnership or limited liability company are duly authorized and validly issued. All shares of capital stock of (or other ownership interests in) each of the Post Subsidiaries which may be issued upon exercise of outstanding options or exchange rights are duly authorized and, upon issuance will be validly issued, fully paid and nonassessable. Except as set forth in Section 4.3(b) of the Post Disclosure Letter, Post owns, directly or indirectly, all of the issued and outstanding capital stock and other ownership interests of each of the Post Subsidiaries owned by Post or a Post Subsidiary, free and clear of all Liens (other than Post Permitted Liens), and except as set forth in the Post LP Agreement, there are no existing options, warrants, calls, subscriptions, convertible securities or other securities, agreements, commitments or obligations of any character relating to the

 

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outstanding capital stock or other securities of any Post Subsidiary owned by Post or a Post Subsidiary or which would require any Post Subsidiary to issue or sell any shares of such Post Subsidiary capital stock, ownership interests or securities convertible into or exchangeable for shares of such Post Subsidiary capital stock or ownership interests.

(c) Except for shares of Post Common Stock subject to Post Restricted Stock Awards, rights under the Post Equity Incentive Plans or as set forth in this Section 4.3 or in Section 4.3(c) of the Post Disclosure Letter, as of the date of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, rights of first refusal, arrangements or undertakings of any kind to which Post or any Post Subsidiary is a party or by which any of them is bound, obligating Post or any Post Subsidiary to issue, deliver or sell or create, or cause to be issued, delivered or sold or created, additional shares of Post Common Stock, shares of Post Preferred Stock (including shares of Post Series A Preferred Stock) or other equity securities or phantom stock or other contractual rights the value of which is determined in whole or in part by the value of any equity security of Post or any of the Post Subsidiaries or obligating Post or any Post Subsidiary to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, right of first refusal, arrangement or undertaking. Except as set forth in Section 4.3(c) of the Post Disclosure Letter, there are no outstanding contractual obligations of Post or any Post Subsidiary to repurchase, redeem or otherwise acquire any shares of Post Common Stock, shares of Post Preferred Stock (including shares of Post Series A Preferred Stock), or other equity securities of Post or any Post Subsidiary. Neither Post nor any Post Subsidiary is a party to or, to the Knowledge of Post, bound by any agreements or understandings concerning the voting (including voting trusts and proxies) of any capital stock of Post or any of the Post Subsidiaries. At the close of business on August 12, 2016, (i) 1,010,838.70 shares of Post Common Stock were available for grant under the Post Equity Incentive Plans (excluding any securities reflected in Section 4.3(a)(iii) ) and (ii) 1,817,490 shares of Post Common Stock were reserved for issuance under the Post ESPP and Post’s Dividend Reinvestment Stock Purchase Plan (the “ Post DRIP ”).

(d) Post does not have a “poison pill” or similar shareholder rights plan.

(e) Except as set forth in Section 4.3(e) of the Post Disclosure Letter, neither Post nor any Post Subsidiary is under any obligation, contingent or otherwise, by reason of any contract to register the offer and sale or resale of any of their securities under the Securities Act.

(f) All dividends or distributions on the Post Common Stock, the Post Series A Preferred Stock and any material dividends or distributions on any securities of any Post Subsidiary which have been authorized or declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).

(g) Post GP is the sole general partner of Post LP and Post GP owns, directly or indirectly, all of the general partner interests in Post LP.

(h) As of the date of this Agreement, Post has not released any Third Party from (or waived the provisions of) any standstill agreement in the last two years.

(i) Section 4.3(i) of the Post Disclosure Letter sets forth, as of the date hereof, the name of, and the number and class of limited partnership interests held by, each partner in Post LP.

Section 4.4  Authority .

(a) Post has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject to receipt of the Post Shareholder Approval, to consummate the transactions contemplated by this Agreement to which Post is a party, including the Parent Merger. The execution and delivery of this Agreement by Post and the consummation by Post of the transactions

 

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contemplated by this Agreement have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of Post are necessary to authorize this Agreement or the Parent Merger or to consummate the other transactions contemplated by this Agreement, subject, with respect to the Parent Merger, to receipt of the Post Shareholder Approval, and to the filing of the articles of merger with the Secretary of State of the State of Georgia. This Agreement has been duly executed and delivered by Post and assuming due authorization, execution and delivery by each of Post GP, Post LP, MAA and MAA LP, constitutes a legally valid and binding obligation of Post enforceable against Post in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

(b) The Post Board, at a duly held meeting, has, by unanimous vote, (i) duly and validly authorized the execution and delivery of, and adopted, this Agreement and declared advisable the consummation of the Mergers and the other transactions contemplated by this Agreement, (ii) directed that the Parent Merger and the other transactions contemplated by this Agreement be submitted for consideration at the Post Shareholder Meeting, and (iii) as of the date of this Agreement, resolved to recommend that the shareholders of Post vote in favor of the approval of the Parent Merger and the other transactions contemplated by this Agreement (the “ Post Recommendation ”) and to include such recommendation in the Joint Proxy Statement, subject to Section 7.4 .

(c) Post LP has the requisite limited partnership power and authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject to the receipt of the Post Partner Approval, to consummate the transactions contemplated by this Agreement, including the Partnership Merger. The execution and delivery of this Agreement by Post LP and the consummation by it of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary partnership action, and no other partnership proceedings on the part of Post LP are necessary to authorize this Agreement or the Partnership Merger or to consummate the transactions contemplated by this Agreement, subject, with respect to the Partnership Merger, to the receipt of the Post Partner Approval, and to the filing of the certificate of merger with the Secretary of State of the State of Georgia. This Agreement has been duly executed and delivered by Post LP, and assuming due authorization, execution and delivery by each of Post, Post GP, MAA and MAA LP, constitutes a legally valid and binding obligation of Post LP, enforceable against Post LP in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

(d) Post GP has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject to the receipt of the Post Partner Approval, to consummate the transactions contemplated by this Agreement, including the Partnership Merger. The execution and delivery of this Agreement by Post GP and the consummation by it of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of Post GP are necessary to authorize this Agreement or the Partnership Merger or to consummate the transactions contemplated by this Agreement, subject, with respect to the Partnership Merger, to the receipt of the Post Partner Approval, and to the filing of the certificate of merger with the Secretary of State of the State of Georgia. This Agreement has been duly executed and delivered by Post GP, and assuming due authorization, execution and delivery by each of Post, Post LP, MAA and MAA LP, constitutes a legally valid and binding obligation of Post GP, enforceable against Post GP in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

Section 4.5  No Conflict; Required Filings and Consents .

(a) Except as set forth in Section 4.5(a) of the Post Disclosure Letter, the execution and delivery of this Agreement by each of Post, Post GP and Post LP does not, and the performance of their respective obligations

 

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hereunder will not, (i) assuming receipt of the Post Shareholder Approval and the Post Partner Approval, conflict with or violate any provision of (A) the Post Articles of Incorporation or Post Bylaws, (B) the articles of incorporation or bylaws of Post GP, (C) the Post LP Agreement or the certificate of limited partnership of Post LP or (D) any equivalent organizational or governing documents of any other Post Subsidiary, (ii) assuming that all consents, approvals, authorizations and permits described in Section 4.5(b) have been obtained, all filings and notifications described in Section 4.5(b) have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to Post or any Post Subsidiary or by which any property or asset of Post or any Post Subsidiary is bound, or (iii) assuming receipt of the Post Shareholder Approval and the Post Partner Approval, require any consent or approval (except as contemplated by Section 4.5(b) ) under, result in any breach of or any loss of any benefit or material increase in any cost or obligation of Post or any Post Subsidiary under, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of termination, acceleration or cancellation (with or without notice or the lapse of time or both) of, or give rise to any right of purchase, first offer or forced sale under or result in the creation of a Lien on any property or asset of Post or any Post Subsidiary pursuant to, any Post Material Contract, except, as to clauses (i)(D), (ii) and (iii), respectively, for any such conflicts, violations, breaches, defaults or other occurrences which, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

(b) The execution and delivery of this Agreement by each of Post, Post GP and Post LP does not, and the performance of this Agreement by each of Post, Post GP and Post LP will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except (i) the filing with the SEC of (A) the Joint Proxy Statement in preliminary and definitive form and of a registration statement on Form S-4 pursuant to which the offer and sale of shares of MAA Common Stock and the MAA Series I Preferred Stock in the Parent Merger will be registered pursuant to the Securities Act and in which the Joint Proxy Statement will be included (together with any amendments or supplements thereto, the “ Form S-4 ”), and declaration of effectiveness of the Form S-4, (B) such reports under, and other compliance with, the Exchange Act (and the rules and regulations promulgated thereunder) and the Securities Act (and the rules and regulations promulgated thereunder) as may be required in connection with this Agreement and the transactions contemplated hereby, and (C) any documents in accordance with Section 7.10 , (ii) as may be required under the rules and regulations of the NYSE, (iii) the filing of (A) the articles of merger with respect to the Parent Merger with the Secretary of State of the State of Georgia and the Secretary of State of the State of Tennessee and (B) appropriate documents with the relevant authorities of the other jurisdictions in which Post and MAA and their respective Subsidiaries are qualified to do business, (iv) the filing of the certificate of merger with respect to the Partnership Merger with the Secretary of State of the State of Georgia and the Secretary of State of the State of Tennessee, respectively, (v) such filings and approvals as may be required by any applicable state securities or “blue sky” Laws, (vi) such filings as may be required in connection with Transfer Taxes, and (vii) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

Section 4.6  Permits; Compliance with Law .

(a) Except for the authorizations, licenses, permits, certificates, approvals, variances, exemptions, orders, franchises, certifications and clearances that are the subject of Section 4.17 or Section 4.18 , which are addressed solely in those Sections, Post and each Post Subsidiary is in possession of all authorizations, licenses, permits, certificates, approvals, variances, exemptions, orders, franchises, certifications and clearances of any Governmental Authority and accreditation and certification agencies, bodies or other organizations, including building permits and certificates of occupancy, necessary for Post and each Post Subsidiary to own, lease and, to the extent applicable, operate its properties or to carry on its respective business substantially as it is being conducted as of the date hereof (the “ Post Permits ”), except in each case as would not, individually or in the aggregate, reasonably be expected to have a Post Material Adverse Effect. All such Post Permits are valid and in full force and effect, except where the failure to be in possession of, or the failure to be valid or in full force and effect of, any of the Post Permits, individually or in the aggregate, would not reasonably be expected to have a

 

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Post Material Adverse Effect. All applications required to have been filed for the renewal of the Post Permits have been duly filed on a timely basis with the appropriate Governmental Authority, and all other filings required to have been made with respect to such Post Permits have been duly made on a timely basis with the appropriate Governmental Authority, except in each case for failures to file which, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect. Neither Post nor any Post Subsidiary has received any written claim or written notice nor has any Knowledge indicating that Post or any Post Subsidiary is currently not in compliance with the terms of any such Post Permits, except where the failure to be in compliance with the terms of any such Post Permits, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

(b) Since January 1, 2014, neither Post nor any Post Subsidiary has been in conflict with, or in default or violation of (i) any Law applicable to Post or any Post Subsidiary or by which any property or asset of Post or any Post Subsidiary is bound (except for Laws addressed in Section 4.16 , Section 4.17 , or Section 4.18 ), or (ii) any Post Permits (except for the Post Permits addressed in Section 4.17 or Section 4.18 ), except in each case for any such conflicts, defaults or violations that have been cured, or, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

Section 4.7  SEC Documents; Financial Statements .

(a) Post has made available to MAA (by public filing with or furnishing to the SEC or otherwise) a true and complete copy of each report, schedule, registration statement and definitive proxy statement filed or furnished by Post and Post LP with the SEC since January 1, 2014 (the “ Post SEC Documents ”). Except for matters relating to open comment letters with the SEC as set forth in Section 4.7 of the Post Disclosure Letter, as of their respective dates, the Post SEC Documents (other than preliminary materials) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Post SEC Documents and none of the Post SEC Documents, at the time of filing or being furnished (or effectiveness in the case of registration statements), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by later Post SEC Documents filed or furnished and publicly available prior to the date of this Agreement and provided that no representation or warranty is made hereunder as to statements made or incorporated by reference in the Form S-4 or the Joint Proxy Statement that were not supplied by or on behalf of Post or Post LP. As of the date of this Agreement and except as previously made available to MAA, neither Post nor Post LP have any outstanding and unresolved comments from the SEC with respect to the Post SEC Documents. Other than Post LP, no Post Subsidiary is required to file any form or report with the SEC.

(b) Post has made available to MAA complete and correct copies of all written correspondence between the SEC on one hand, and Post or Post LP, on the other hand, since January 1, 2014. At all applicable times, Post and Post LP have both complied in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and any applicable rules and regulations thereunder, as amended from time to time, and the applicable listing and corporate governance rules of the NYSE.

(c) The consolidated financial statements of Post and the Post Subsidiaries included or incorporated by reference in the Post SEC Documents, including the related notes and schedules, complied as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto, or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X under the Exchange Act) and fairly presented, in all material respects, in accordance with applicable requirements of GAAP and the applicable rules and regulations of the SEC (subject, in the case of the unaudited statements, to normal, recurring adjustments, none of which are material), the consolidated financial position of Post and the Post Subsidiaries, taken as a whole, as of their

 

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respective dates and the consolidated statements of income and the consolidated cash flows of Post and the Post Subsidiaries for the periods presented therein, in each case, except to the extent such financial statements have been modified or superseded by later Post SEC Documents filed and publicly available prior to the date of this Agreement.

Section 4.8  Absence of Certain Changes or Events . Except as contemplated by this Agreement or as set forth in Section 4.8 of the Post Disclosure Letter, since June 30, 2016, Post and each Post Subsidiary has conducted its business in all material respects in the ordinary course. Since June 30, 2016, there has not been any Post Material Adverse Effect or any effect, event, change or circumstance that, individually or in the aggregate with all other effects, events, changes and circumstances, would reasonably be expected to have a Post Material Adverse Effect.

Section 4.9  No Undisclosed Material Liabilities . Except as disclosed in the Post SEC Documents, as set forth in Section 4.9 of the Post Disclosure Letter or as otherwise would not reasonably be expected to have a Post Material Adverse Effect, there are no liabilities of Post or any of the Post Subsidiaries of a nature that would be required under GAAP to be set forth on the financial statements of Post or the notes thereto, other than: (a) liabilities adequately provided for on the balance sheet of Post dated as of June 30, 2016 (including the notes thereto) as required by GAAP, (b) liabilities incurred in connection with the transactions contemplated by this Agreement, or (c) liabilities incurred in the ordinary course of business, consistent with past practice, subsequent to June 30, 2016.

Section 4.10  No Default . Except as set forth on Section 4.10 of the Post Disclosure Letter, none of Post or any of the Post Subsidiaries is in default or violation (and to the Knowledge of Post, no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (a) (i) the Post Articles of Incorporation or the Post Bylaws, (ii) the articles of incorporation or bylaws of Post GP, (iii) the Post LP Agreement or the certificate of limited partnership of Post LP or (iv) the comparable charter or organizational documents of any of the other Post Subsidiaries, (b) any loan or credit agreement, note, or any bond, mortgage or indenture, to which Post or any of the Post Subsidiaries is a party or by which Post, any of the Post Subsidiaries or any of their respective properties or assets is bound, or (c) any Order, statute, rule or regulation applicable to Post or any of the Post Subsidiaries, except in the case of (b) and (c) for defaults or violations which have been cured or, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

Section 4.11  Litigation . Except as individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, or as set forth in Section 4.11 of the Post Disclosure Letter, as of the date of this Agreement, (a) there is no Action pending or, to the Knowledge of Post, threatened in writing by or before any Governmental Authority against Post or any Post Subsidiary or any director or officer of Post or any Post Subsidiary, and (b) neither Post nor any Post Subsidiary, nor any of Post’s or any Post Subsidiary’s respective property, is subject to any outstanding Order of any Governmental Authority.

Section 4.12  Taxes .

(a) Post and each Post Subsidiary has timely filed with the appropriate Governmental Authority all material Tax Returns required to be filed, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and correct in all material respects. Post and each Post Subsidiary has duly paid (or there has been paid on their behalf), or made adequate provisions for, all material Taxes required to be paid by them, whether or not shown on any Tax return. Neither Post nor any of its Subsidiaries has received a written claim, or to the Knowledge of Post, an unwritten claim, by any authority in a jurisdiction where any of them does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.

(b) Post and each Post REIT Subsidiary: (i) for all taxable years commencing with the taxable year ending December 31, 1993 (and the relevant Post REIT Subsidiary’s formation) and through December 31, 2015,

 

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has been subject to taxation as a real estate investment trust within the meaning of Sections 856 and 857 of the Code (a “ REIT ”) and has satisfied all requirements for qualification and taxation as a REIT for such years; (ii) has operated since January 1, 2016 and will operate to the Parent Merger Effective Time in a manner consistent with the requirements for qualification and taxation as a REIT; (iii) intends to continue to operate in such a manner as to qualify as a REIT for its taxable year ending with the Parent Merger (or in the case of each Post REIT Subsidiary, intends to continue to operate up to the Parent Merger in such a manner as to qualify as a REIT for its taxable year that will include the Parent Merger); and (iv) has not taken or omitted to take any action that could reasonably be expected to result in a challenge by the IRS to its status as a REIT, and to the Knowledge of Post, no such challenge is pending or threatened. No entity in which Post owns an interest is a corporation for U.S. federal income tax purposes, other than a Post REIT Subsidiary, a corporation that qualifies as a REIT, a “qualified REIT subsidiary” within the meaning of Section 856(i)(2) of the Code (“ Qualified REIT Subsidiary ”) or a “taxable REIT subsidiary” within the meaning of Section 856(l) of the Code (“ Taxable REIT Subsidiary ”). Section 4.12(b) of the Post Disclosure Letter sets forth a list of each Post REIT Subsidiary, Qualified REIT Subsidiary and Taxable REIT Subsidiary owned directly or indirectly by Post, and each Post Subsidiary not set forth in Section 4.12(b) of the Post Disclosure Letter is and has been since its formation classified as a partnership or entity disregarded as separate from Post or a Post Subsidiary for U.S. federal income tax purposes. Each Post Subsidiary that is a partnership, joint venture or limited liability company and has not elected to be a Taxable REIT Subsidiary has been since its formation treated for U.S. federal income tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation. Taking into account all distributions to be made by Post prior to the Parent Merger Effective Time, Post will have distributed cash to its shareholders in its taxable year ending with the Parent Merger in an amount equal to or in excess of the amount required to be distributed pursuant to Section 857(a) of the Code in respect of its taxable year ending with the Parent Merger, and Post will not be subject to Tax under Sections 857(b) or 4981 of the Code in respect of its taxable year ending with the Parent Merger.

(c) (i) There are no audits, investigations by any Governmental Authority or other proceedings ongoing or, to the Knowledge of Post, threatened with regard to any Taxes or Tax Returns of Post or any Post Subsidiary; (ii) no deficiency for Taxes of Post or any Post Subsidiary has been claimed, proposed or assessed in writing or, to the Knowledge of Post, threatened, by any Governmental Authority, which deficiency has not yet been settled, except for such deficiencies which are being contested in good faith or with respect to which the failure to pay, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect; (iii) except as set forth in Section 4.12(c)(iii) of the Post Disclosure Letter, neither Post nor any Post Subsidiary has waived any statute of limitations with respect to the assessment of Taxes or agreed to any extension of time with respect to any Tax assessment or deficiency for any open tax year or is the beneficiary of an extension of time to file any Tax Return except for any such waivers or extensions relating to an extension of time to file any non-income Tax Return in respect of a taxable year or period ending in 2015 or 2016; and (iv) except as set forth in Section 4.12(c)(iv) of the Post Disclosure Letter, neither Post nor any of the Post Subsidiaries has entered into any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).

(d) Neither Post nor any Post Subsidiary holds any asset the disposition of which would be subject to (or to rules similar to) Section 1374 of the Code.

(e) Beginning with its taxable year ended December 31, 2012, (i) Post and the Post Subsidiaries have not incurred any liability for material Taxes under Sections 856(g)(5)(C), 857(b)(1), 857(b)(4), 857(b)(5), 857(b)(6)(A), 857(b)(7), 860(c) or 4981 of the Code which have not been previously paid and shall not incur any such liability for such Taxes in the taxable year ending on the Closing Date, and (ii) neither Post nor any Post Subsidiary has incurred any material liability for Taxes other than (A) in the ordinary course of business or consistent with past practice, or (B) transfer or similar Taxes arising in connection with a sale, exchange, or other transfer of property. No event has occurred, and no condition or circumstance exists, which presents a material risk that any material Tax described in the preceding sentence will be imposed upon Post or the Post Subsidiaries.

 

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(f) Post and the Post Subsidiaries have complied, in all material respects, with all applicable Laws, rules and regulations relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471 and 3402 of the Code or similar provisions under any state and foreign Laws) and have duly and timely withheld and, in each case, have paid over to the appropriate Governmental Authority all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.

(g) Except as set forth on Section 4.12(g) of the Post Disclosure Letter, there are no Post Tax Protection Agreements in force at the date of this Agreement, and, as of the date of this Agreement, no person has raised in writing, or to the Knowledge of Post, threatened to raise a material claim against Post or any Post Subsidiary for any breach of any Post Tax Protection Agreements. As used herein, “ Post Tax Protection Agreements ” means any written agreement to which Post or any Post Subsidiary is a party (i) pursuant to which any liability to holders of interests in a Post Subsidiary Partnership relating to Taxes may arise, whether or not as a result of the consummation of the transactions contemplated by this Agreement; and/or (ii) that was entered into in connection with or related to the deferral of income Taxes of a holder of interests in a Post Subsidiary Partnership, and that requires Post or any Post Subsidiary (A) to maintain a minimum level of debt, continue a particular debt, or provide rights to guarantee or otherwise assume economic risk of loss with respect to debt, (B) to retain or not to dispose of assets, or engage in transactions of comparable tax effect, (C) to make or refrain from making a Tax election, and/or (D) only dispose of assets in a particular manner. As used herein, “ Post Subsidiary Partnership ” means a Post Subsidiary that is a partnership for U.S. federal income tax purposes.

(h) There are no Tax Liens upon any property or assets of Post or any Post Subsidiary except Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.

(i) Neither Post nor any Post Subsidiary has requested or has received any written ruling of a Governmental Authority, or has entered into any written agreement with a Governmental Authority with respect to any Taxes.

(j) There are no Tax allocation or sharing agreements or similar arrangements with respect to which Post or any Post Subsidiary is a party (other than customary arrangements under commercial contracts or borrowings entered into in the ordinary course of business and Post Tax Protection Agreements).

(k) Neither Post nor any Post Subsidiary (i) has been a member of an affiliated group filing a consolidated U.S. federal income Tax Return or (ii) has any liability for the Taxes of any Person (other than Post or any Post Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.

(l) Neither Post nor any Post Subsidiary has participated in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).

(m) Neither Post nor any of the Post Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with transactions contemplated by this Agreement.

(n) Except as set forth in Section 4.12(n) of the Post Disclosure Letter, no written power of attorney that has been granted by Post or any of the Post Subsidiaries (other than to Post or a Post Subsidiary) currently is in force with respect to any matter relating to Taxes.

 

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(o) Neither Post nor any of the Post Subsidiaries (other than Taxable REIT Subsidiaries) has or has had any earnings and profits attributable to such entity or any other corporation in any non-REIT year within the meaning of Section 857 of the Code.

(p) As of the date of this Agreement, Post is not aware of any fact or circumstance that could reasonably be expected to prevent the Parent Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

(q) Except as set forth in Section 4.12(q) of the Post Disclosure Letter, to the Knowledge of Post, neither it nor any of its Subsidiaries has engaged at any time in any “prohibited transactions” within the meaning of Section 857(b)(6) of the Code or engaged in any transaction that would give rise to “redetermined rents, redetermined deductions, excess interest, and redetermined TRS service income” described in Section 857(b)(7) of the Code.

(r) This Section 4.12 contains the sole and exclusive representations and warranties of the Post Parties with respect to Taxes and Tax matters (other than those matters described in Section 4.7(c) , Section 4.13 , Section 4.14(c) , Section 4.18(b) and Section 4.18(g) ).

Section 4.13  Pension and Benefit Plans; Employees .

(a) Section 4.13(a) of the Post Disclosure Letter sets forth a list, as of the date hereof, of every material Employee Benefit Plan currently maintained or contributed to (or with respect to which any obligation to contribute has been undertaken) by Post or any of its ERISA Affiliates (such Employee Benefit Plans, the “ Post Employee Benefit Plans ”. Each such Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS regarding its qualification thereunder that has not been revoked and, to the Knowledge of Post, no event has occurred and no condition exists that is reasonably expected to result in the revocation of any such determination or opinion letter.

(b) With respect to each such Post Employee Benefit Plan, Post has provided, or made available, to MAA (if applicable to such Post Employee Benefit Plan): (i) all documents embodying or governing such Post Employee Benefit Plan, and any funding medium for the Post Employee Benefit Plan (including, without limitation, trust agreements); (ii) the most recent IRS determination or opinion letter with respect to such Post Employee Benefit Plan under Section 401(a) of the Code; (iii) the most recently filed IRS Form 5500 Annual Report and accompanying schedules and audited financial statements; (iv) the most recent actuarial report; (v) the current summary plan description for such Post Employee Benefit Plan (or other descriptions of such Post Employee Benefit Plan provided to employees) and all summaries of material modifications thereto; (vi) any insurance policy related to such Post Employee Benefit Plan; and (vii) all material written correspondence received from the IRS, Pension Benefit Guaranty Corporation or the U.S. Department of Labor during the past three (3) years relating to any government investigation or audit or any submissions under any voluntary compliance or correction policy.

(c) Each Post Employee Benefit Plan has been administered in accordance with the requirements of applicable law, including, without limitation, ERISA and the Code, except as would not, individually or in the aggregate, reasonably be expected to have a Post Material Adverse Effect, and is being administered and operated in all material respects in accordance with its terms. No Post Employee Benefit Plan is subject to Title IV of ERISA, is a multiemployer plan, within the meaning of ERISA Section 3(37), is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or is a “multiple employer plan” (as defined in Section 413 of the Code). Neither Post nor any ERISA Affiliate has ever maintained or contributed to, or had any obligation to contribute to (or borne any liability with respect to) any such multiemployer plan or multiple employer plan.

(d) Full payment has been made, or otherwise properly accrued on the books and records of Post and any ERISA Affiliate, of all amounts that Post and any ERISA Affiliate are required under the terms of the Post

 

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Employee Benefit Plans to have paid as contributions to such Post Employee Benefit Plans on or prior to the date hereof (excluding any amounts not yet due) and the contribution requirements, on a prorated basis, for the current year have been made or otherwise properly accrued on the books and records of Post through the Closing Date.

(e) Neither Post, an ERISA Affiliate or any person appointed or otherwise designated to act on behalf of Post, or an ERISA Affiliate, nor, to the Knowledge of Post, any other “disqualified person” or “party in interest” (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any transactions in connection with any Post Employee Benefit Plan that is reasonably expected to result in the imposition of a material penalty or pursuant to Section 502(i) of ERISA, material damages pursuant to Section 409 of ERISA or a material tax pursuant to Section 4975(a) of the Code.

(f) No material liability, claim, action, audit, investigation, governmental proceeding or litigation has been made, commenced or, to the Knowledge of Post, threatened with respect to any Post Employee Benefit Plan (other than for benefits payable in the ordinary course of business).

(g) Except as set forth in Section 4.13(g) of the Post Disclosure Letter, no Post Employee Benefit Plan provides for medical, life insurance or other health or welfare benefits (other than under Section 4980B of the Code, Part 6 of Title I of ERISA or other similar applicable Law, or a plan qualified under Section 401(a) of the Code) to any current or future retiree or former employee.

(h) Except as set forth in Section 4.13(h) of the Post Disclosure Letter, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (individually or together with the occurrence of any other event): (i) entitle any employee, trustee, director or consultant of Post or the Post Subsidiaries to severance pay or any increase in severance pay under any Post Employee Benefit Plan or Post employment agreement upon any termination of employment on or after the date of this Agreement; (ii) accelerate the time of payment, vesting or funding or result in any payment of compensation or benefits under, or increase the amount or value of any payment to any employee, officer, trustee or director of Post or any Post Subsidiary, or could limit the right to amend, merge or terminate any Post Employee Benefit Plan or related trust; (iii) result in payments or benefits under any Post Employee Benefit Plan or Post employment agreement which would not be deductible under Section 280G of the Code; or (iv) result in a requirement to pay any tax “gross up” or similar “make whole” payment to any employee, director, consultant or other service provider of Post or any of its ERISA Affiliates.

(i) The per share exercise price of each Post Option is no less than the fair market value of a share of Post Common Stock on the date of grant of such Post Option (and as of each later modification thereof within the meaning of Section 409A of the Code) determined in a manner consistent with Section 409A of the Code. Each Post Employee Benefit Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be made under any Post Employee Benefit Plan is, or to the Knowledge of Post, will be, subject to the penalties of Section 409A(a)(1) of the Code.

Section 4.14  Labor and Employment Matters .

(a) Neither Post nor any Post Subsidiary is a party to, or bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor union organization, nor are there any negotiations or discussions currently pending or occurring between Post, or any of the Post Subsidiaries, and any union or employee association regarding any collective bargaining agreement or any other work rules or polices. There is no unfair labor practice or labor arbitration proceeding pending or, to the Knowledge of Post, threatened against Post or any of the Post Subsidiaries relating to their business and neither Post nor any Post Subsidiary has experienced any strike, work stoppage, lockout, shutdown, labor dispute or other concerted interference with normal operations during the past five (5) years. To the Knowledge of Post,

 

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there are no organizational efforts with respect to the formation of a collective bargaining unit presently being made or threatened involving employees of Post or any of the Post Subsidiaries nor have there been any such organizational efforts over the past five (5) years.

(b) Except as set forth in Section 4.14(b) of the Post Disclosure Letter, there are no proceedings pending or, to the Knowledge of Post, threatened against Post or any of the Post Subsidiaries in any forum by or on behalf of any present or former employee of Post or any of the Post Subsidiaries, any applicant for employment or classes of the foregoing alleging unpaid or overdue wages or compensation due, breach of any express or implied employment contract, violation of any law or regulation governing employment or the termination thereof, or any other discriminatory, wrongful or tortious conduct on the part of Post of any of the Post Subsidiaries in connection with the employment relationship that, individually or in the aggregate, would reasonably be expected to have a Post Material Adverse Effect.

(c) Each individual who renders service to Post or any Post Subsidiary who is classified by Post or such Post Subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under any Post Employee Benefit Plans) is properly so classified and treated in accordance with applicable Laws and for purposes of all Post Employee Benefit Plans and perquisites, except as would not, individually or in the aggregate, reasonably be expected to have a Post Material Adverse Effect.

(d) Each of Post and the Post Subsidiaries is in compliance with all applicable Laws and all applicable contracts and policies relating to labor and labor practices, employment and employment practices, wages, hours, and terms and conditions of employment, including the obligations of the WARN Act, and all other notification and bargaining obligations arising under any collective bargaining agreement, by applicable Law or otherwise, except as would not, individually or in the aggregate, reasonably be expected to have a Post Material Adverse Effect. Except as set forth in Section 4.14(d) of the Post Disclosure Letter, neither Post nor any Post Subsidiary has implemented, conducted or experienced a “plant closing” or “mass layoff” as defined in the WARN Act (or any similar group personnel action requiring advance notice under the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of Post or any Post Subsidiary.

Section 4.15  Information Supplied . None of the information supplied or to be supplied by or on behalf of Post, Post GP and Post LP in writing for inclusion or incorporation by reference in the Form S-4 or the Joint Proxy Statement will (a) in the case of the Form S-4, at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) in the case of the Joint Proxy Statement, at the time such Joint Proxy Statement is first mailed to Post’s shareholders or at the time of the Post Shareholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 and the Joint Proxy Statement will (with respect to Post, its officers and directors and the Post Subsidiaries) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. No representation or warranty is made hereunder as to statements made or incorporated by reference in the Form S-4 or the Joint Proxy Statement that were not supplied by or on behalf of Post, Post GP or Post LP.

Section 4.16  Intellectual Property .

(a) Except as set forth in Section 4.16(a) of the Post Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, (i) Post and the Post Subsidiaries own or are licensed or otherwise possess valid rights to use all Intellectual Property necessary to conduct the business of Post and the Post Subsidiaries as it is currently conducted, provided, however, that the

 

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foregoing representation and warranty in this Section 4.16(a)(i)  shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in the following clause (ii)), (ii) to the Knowledge of Post, the conduct of the business of Post and the Post Subsidiaries as it is currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any third party, (iii) there are no pending or, to the Knowledge of Post, threatened claims that challenge the use or ownership of any of the Intellectual Property rights owned by Post or any Post Subsidiary, and (iv) to the Knowledge of Post, no third party is currently infringing or misappropriating Intellectual Property owned by Post or any Post Subsidiary. Post and the Post Subsidiaries are taking all actions that they reasonably believe are necessary to maintain and protect each material item of Intellectual Property that they own.

(b) This Section 4.16 contains the exclusive representations and warranties of the Post Parties with respect to intellectual property matters.

Section 4.17  Environmental Matters .

(a) Except as individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, or as set forth in Section 4.17(a) of the Post Disclosure Letter, or in any Phase I or Phase II report made available to MAA prior to the date hereof:

(i) To the Knowledge of Post (after due inquiry), Post and each Post Subsidiary are in compliance with and, except for matters that have been fully and finally resolved, have complied with all Environmental Laws.

(ii) To the Knowledge of Post (after due inquiry), Post and each Post Subsidiary have all Environmental Permits necessary to conduct their current operations and are in compliance in all material respects with their respective Environmental Permits, and all such Environmental Permits are in good standing.

(iii) Since January 1, 2014, neither Post nor any Post Subsidiary has received any written notice, demand, letter or claim alleging that Post or any such Post Subsidiary is in violation of, or liable under, any Environmental Law or that any judicial, administrative or compliance order has been issued against Post or any Post Subsidiary which remains unresolved. There is no litigation, investigation, governmental request for information or other proceeding pending, or, to the Knowledge of Post, threatened against Post and any Post Subsidiary under any Environmental Law or with respect to Hazardous Substances.

(iv) Since January 1, 2014, neither Post nor any Post Subsidiary has entered into or agreed to any consent decree or order or is subject to any judgment, decree or judicial, administrative or compliance order relating to compliance with Environmental Laws, Environmental Permits or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Substances and no investigation, litigation or other proceeding is pending or, to the Knowledge of Post, threatened against Post or any Post Subsidiary under any Environmental Law or with respect to Hazardous Substances.

(v) Since January 1, 2014, neither Post nor any Post Subsidiary has assumed, by contract or, to the Knowledge of Post, by operation of Law, any liability under any Environmental Law or relating to any Hazardous Substances, or is an indemnitor in connection with any threatened or asserted claim by any third-party indemnitee for any liability under any Environmental Law or relating to any Hazardous Substances.

(vi) Since January 1, 2014, neither Post nor any Post Subsidiary has caused, and to the Knowledge of Post, no Third Party has caused any release of a Hazardous Substance that would be required to be investigated or remediated by Post or any Post Subsidiary under any Environmental Law.

(b) Notwithstanding any other provision of this Agreement, other than Section 4.5(b) , Section 4.7 , Section 4.8 , Section 4.9 , Section 4.18(b) and Section 4.20 , this Section 4.17 contains the exclusive representations and warranties of the Post Parties with respect to Environmental Laws, Hazardous Substances or other environmental matters.

 

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Section 4.18  Properties .

(a) Section 4.18(a) of the Post Disclosure Letter sets forth a list of the common name and address of each facility and real property owned or ground leased (as lessee or sublessee) by Post or any Post Subsidiary as of the date of this Agreement (all such real property interests, together with all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property, are individually referred to herein as a “ Post Property ” and collectively referred to herein as the “ Post Properties ”). Section 4.18(a) of the Post Disclosure Letter sets forth a list of the common name and address of each facility and real property which, as of the date of this Agreement, is under contract by Post or a Post Subsidiary for purchase or which is required under a binding contract to be ground leased by Post or a Post Subsidiary after the date of this Agreement, and Post has provided to MAA as of the date hereof true, correct and complete copies of such contracts. Except as set forth in Section 4.18(a) of the Post Disclosure Letter, there are no real properties that Post or any Post Subsidiary is obligated to buy or ground lease at some future date. Section 4.18(a) of the Post Disclosure Letter sets forth a list of the common name, city and state of each for-rent multi-family apartment project which (i) Post or any Post Subsidiary developed or constructed on or after January 1, 2009, and (ii) which Post or any Post Subsidiary sold, disposed or transferred, directly or indirectly, in whole or in part, on or after January 1, 2009.

(b) Post or a Post Subsidiary owns good and valid fee simple title or a good and valid ground lease interest (as applicable) to each of the Post Properties, in each case, free and clear of Liens, except for Post Permitted Liens. For the purposes of this Agreement, “ Post Permitted Liens ” shall mean any (i) Liens that result from any statutory or other Liens for Taxes or assessments that are not yet subject to penalty or the validity of which is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of Post (if such reserves are required pursuant to GAAP), (ii) Liens imposed or promulgated by Law, including zoning regulations, permits and licenses (but not including Liens imposed pursuant to CERCLA and similar state laws), (iii) Liens that are disclosed on the existing Post Title Insurance Policies made available by or on behalf of Post or any Post Subsidiary to MAA prior to the date hereof and, with respect to ground leasehold interests, Liens on the underlying fee or leasehold interest of the applicable ground lessor, lessor or sublessor, or relate to Indebtedness otherwise disclosed in the Post Disclosure Letter, (iv) any inchoate cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s liens and other similar Liens imposed by Law and incurred in the ordinary course of business consistent with past practice that are not yet subject to penalty or the validity of which is being contested in good faith by appropriate proceedings, and (v) such imperfections in title, easements, restrictions, covenants and similar Liens that do not or will not interfere in any material manner with the current use of the Post Properties (assuming its continued use in the manner it is currently used), or otherwise impair in any material manner the current operations of such Post Properties (assuming its continued use in the manner it is currently operated).

(c) Except as set forth in Section 4.18(c) of the Post Disclosure Letter, neither Post nor any Post Subsidiary has received (i) written notice that any certificate, permit or license from any Governmental Authority having jurisdiction over any of the Post Properties or any agreement, easement or other right of an unlimited duration that is necessary to permit the lawful use and operation of the buildings and improvements on any of the Post Properties (assuming their continued use in the manner they are currently used) or that is necessary to permit the lawful use and operation of all utilities, parking areas, retention ponds, driveways, roads and other means of egress and ingress to and from any of the Post Properties (assuming their continued use in the manner they are currently used)is not in full force and effect as of the date of this Agreement, except for such failures to be in full force and effect that, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, or of any pending written threat of modification or cancellation of any of same, that would reasonably be expected to have a Post Material Adverse Effect, or (ii) written notice of any uncured violation of any Laws affecting any of the Post Properties which, individually or in the aggregate, would reasonably be expected to have a Post Material Adverse Effect.

(d) Except as set forth in Section 4.18(d) of the Post Disclosure Letter, no certificate, variance, permit or license from any Governmental Authority having jurisdiction over any of the Post Properties or any

 

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agreement, easement or other right that is necessary to permit the current use of the buildings and improvements on any of the Post Properties (assuming their continued use in the manner they are currently used) or that is necessary to permit the current use of all parking areas, driveways, roads and other means of egress and ingress to and from any of the Post Properties (assuming their continued use in the manner they are currently used) has failed to be obtained or is not in full force and effect, and neither Post nor any Post Subsidiary has received written notice of any outstanding threat of modification, suspension or cancellation of any such certificate, variance, permit or license, except for any of the foregoing as, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect.

(e) Except as set forth in Section 4.18(e) of the Post Disclosure Letter, no condemnation, eminent domain or similar proceeding has occurred or is pending with respect to any owned Post Property or, to the Knowledge of Post, any Post Property ground leased by Post or any Post Subsidiary, that would interfere in any material manner with the current use of the Post Properties (assuming its continued use in the manner it is currently used), or otherwise impair in any material manner the current operations of such Post Properties (assuming its continued use in the manner it is currently operated), and neither Post nor any Post Subsidiary has received any written notice to the effect that (i) any condemnation or rezoning proceedings (other than those initiated by or on behalf of Post or with Post’s consent) are threatened for any Post Property, that would interfere in any material manner with the current use of the Post Properties (assuming its continued use in the manner it is currently used), or otherwise impair in any material manner the current operations of such Post Properties (assuming its continued use in the manner it is currently operated), or (ii) any zoning regulation or ordinance (including with respect to parking), building, fire, health or other Law has been violated (and remains in violation) for any Post Property.

(f) Section 4.18(f) of the Post Disclosure Letter lists all ground leases (whether as lessor or lessee) affecting the interest of Post or any Post Subsidiary in the Post Properties in effect as of the date hereof. True and complete in all material respects copies of all such ground leases in effect as of the date hereof, together with all amendments, modifications, supplements, renewals and extensions related thereto, have been made available to MAA on or prior to the date hereof.

(g) Except as set forth on Section 4.18(g) of the Post Disclosure Letter, there are no material Tax abatements or exemptions specifically affecting the Post Properties.

(h) Except for Post Permitted Liens or as set forth in Section 4.18(h) of the Post Disclosure Letter and as set forth in contracts provided to MAA prior to the date hereof, (i) there are no unexpired option to purchase agreements, rights of first refusal or first offer or any other rights to purchase or otherwise acquire any Post Property or any portion thereof that would materially adversely affect Post’s, or any Post Subsidiary’s, ownership, ground lease or right to use a Post Property, and (ii) there are no other outstanding rights or agreements to enter into any contract for sale, ground lease or letter of intent to sell or ground lease any Post Property or any portion thereof that is owned by any Post Subsidiary, which, in each case, is in favor of any party other than Post or a Post Subsidiary (a “ Post Third Party ”).

(i) Except as set forth in Section 4.18(i) of the Post Disclosure Letter or pursuant to a Post Lease or any ground lease affecting any Post Property, neither Post nor any Post Subsidiary is a party to any agreement pursuant to which Post or any Post Subsidiary manages or manages the development of any real property for any Post Third Party.

(j) Except as set forth in Section 4.18(j) of the Post Disclosure Letter, Post and each Post Subsidiary, as applicable, is in possession of title insurance policies or valid marked-up title commitments evidencing title insurance with respect to each Post Property (each, a “ Post Title Insurance Policy ” and, collectively, the “ Post Title Insurance Policies ”). A copy of each such Post Title Insurance Policy in the possession of Post as of the date hereof has been made available to MAA. Except as set forth in Section 4.18(j) of the Post Disclosure Letter, no written claim has been made against any Post Title Insurance Policy, which remains pending and, which, individually or in the aggregate, would be material to any Post Property.

 

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(k) Section 4.18(k) of the Post Disclosure Letter lists the common name and address of each Post Property which is under ground-up development as of the date hereof (each, a “ Post Development Property ”, and, collectively, the “ Post Development Properties ”). Post has provided to MAA true, correct and complete copies of any contracts for the design, development and construction of the Post Development Properties, including any binding agreement for ground-up development or commencement of construction by Post or a Post Subsidiary (collectively referred to herein as the “ Post Development Contracts ”). To the Knowledge of Post, there are no defaults under any of the Post Development Contracts which, individually or in the aggregate, could have a Post Material Adverse Effect. Post has provided to MAA true, correct and complete copies of all material plans and specifications for the development, redevelopment or construction projects contemplated at the Post Development Properties (the “ Plans and Specifications ”). Except as set forth in Section 4.18(k) of the Post Disclosure Letter, neither Post nor any Post Subsidiary has entered into any development or construction management services agreement with an unaffiliated person or entity in which such party is due a payment upon completion or stabilization of the project contemplated at any Post Development Property. Post or Post Subsidiaries have obtained any and all material approvals, consents and authorizations to initiate and complete the contemplated development, redevelopment or constructions of the Post Development Properties as contemplated in the applicable Plans and Specifications. Section 4.18(k) of the Post Disclosure Letter lists the common name and address of each Post Property which is vacant land.

(l) Section 4.18(l) of the Post Disclosure Letter lists the parties currently providing third-party property management services to Post or a Post Subsidiary and the names of facilities currently managed by each such party.

Section 4.19  Material Contracts .

(a) Except for contracts listed in Section 4.19(a) of the Post Disclosure Letter or filed as exhibits to the Post SEC Documents, as of the date of this Agreement, neither Post nor any Post Subsidiary is a party to or bound by any contract that, as of the date hereof:

(i) is required to be filed as an exhibit to Post’s Annual Report on Form 10-K on or after January 1, 2014 pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act;

(ii) obligates Post or any Post Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,500,000 and is not cancelable within one hundred eighty (180) days without material penalty to Post or any Post Subsidiary, except for any Post Lease or any ground lease affecting any Post Property;

(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of Post or any Post Subsidiary, or that otherwise restricts the lines of business conducted by Post or any Post Subsidiary or the geographic area in which Post or any Post Subsidiary may conduct business;

(iv) is an agreement which obligates Post or any Post Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of Post or any Post Subsidiary pursuant to which Post or a Post Subsidiary is the indemnitor (other than the organizational documents of Post and the Post Subsidiaries);

(v) constitutes an Indebtedness obligation of Post or any Post Subsidiary with a principal amount as of the date hereof greater than $1,500,000;

(vi) requires Post or any Post Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Post Lease or a ground lease affecting a Post Property) with a fair market value in excess of $1,500,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Post Lease or any ground lease affecting any Post Property;

 

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(vii) constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a hedging transaction which has a notional amount in excess of $1,500,000;

(viii) sets forth the operational terms of a joint venture, partnership, limited liability company with a Third Party member or strategic alliance of Post or any Post Subsidiary;

(ix) is a Post Development Contract with a total contract amount in excess of $1,500,000;

(x) constitutes a loan to any Person (other than a wholly owned Post Subsidiary) by Post or any Post Subsidiary (other than advances made pursuant to and expressly disclosed in the Post Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Post Lease with respect to the development, construction, or equipping of Post Properties or the funding of improvements to Post Properties) in an amount in excess of $1,500,000; or

(xi) constitutes a regulatory agreement or similar agreement that requires that any portion of a property be leased to persons meeting criteria set forth in such agreement.

(b) Each such contract described in clauses (i) -( xi) of Section 4.19(a) above is referred to herein as a “ Post Material Contract ”.

(c) Except as, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, each Post Material Contract is legal, valid, binding and enforceable on Post and each Post Subsidiary that is a party thereto and, to the Knowledge of Post, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, Post and each Post Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Post Material Contract and, to the Knowledge of Post, each other party thereto has performed all obligations required to be performed by it under such Post Material Contract prior to the date hereof. None of Post or any Post Subsidiary, nor, to the Knowledge of Post, any other party thereto, is in material breach or violation of, or default under, any Post Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation of, breach of or default under any Post Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the aggregate, a Post Material Adverse Effect. Neither Post nor any Post Subsidiary has received written notice of any violation of or default under any Post Material Contract, except as set forth in Section 4.19(c) of the Post Disclosure Letter, and except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Post Material Adverse Effect.

Section 4.20  Insurance . Post has made available to MAA a schedule of all material insurance policies and all material fidelity bonds or other material insurance service contracts in Post’s possession providing coverage for all Post Properties (the “ Post Insurance Policies ”), which is set forth in Section 4.20 of the Post Disclosure Letter. Except as individually or in the aggregate, would not reasonable be expected to have a Post Material Adverse Effect, there is no claim for coverage by Post or any Post Subsidiary pending under any of the Post Insurance Policies that has been denied or disputed by the issuer. Except as individually or in the aggregate, would not reasonably be expected to have a Post Material Adverse Effect, all premiums payable under all Post Insurance Policies have been paid, and Post and the Post Subsidiaries have otherwise complied in all material respects with the terms and conditions of all the Post Insurance Policies. To the Knowledge of Post, such Post Insurance Policies are valid and enforceable in accordance with their terms and are in full force and effect. Except for notice of annual or other periodic expiration, termination or non-renewal received in the ordinary course of business, no written notice of cancellation or termination has been received by Post or any Post Subsidiary with respect to any such policy which has not been replaced on substantially similar terms prior to the date of such cancellation.

 

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Section 4.21  Opinion of Post Financial Advisor . The Post Board has received the oral opinion of J.P. Morgan Securities Inc. (“ JP Morgan ”) (to be confirmed in writing) to the effect that, as of the date of such opinion, and subject to the assumptions and limitations set forth in JP Morgan’s written opinion, the Exchange Ratio in the Parent Merger is fair, from a financial point of view, to the holders of shares of Post Common Stock. After the date hereof, Post will make available to MAA, solely for informational purposes, a complete and correct copy of the written opinion after receipt thereof by the Post Board.

Section 4.22  Vote Required . The affirmative vote of the holders of a majority of the outstanding shares of Post Common Stock (the “ Post Shareholder Approval ”) is the only vote of holders of securities of Post required to adopt this Agreement and approve and consummate the Parent Merger and the other transactions contemplated by this Agreement. The affirmative vote of a majority of the Post OP Units (the “ Post Partner Approval ”) is the only vote or consent required of the holders of any class or series of Post OP Units or other securities of, or equity interests in, Post LP, other than the approval of Post GP, the general partner of Post LP (of which Post is the sole shareholder), required to approve this Agreement and to approve and consummate the Partnership Merger and the other transactions contemplated by this Agreement.

Section 4.23  Brokers . Except for the fees and expenses payable to JP Morgan, no broker, investment banker or other Person is entitled to any broker’s, finder’s or other similar fee or commission in connection with the Mergers or any transactions contemplated by this Agreement based upon arrangements made by or on behalf of Post or any Post Subsidiary.

Section 4.24  Investment Company Act . Neither Post nor any Post Subsidiary is required to be registered as an investment company under the Investment Company Act.

Section 4.25  Takeover Statutes . The Post Board has taken all appropriate and necessary actions such that Post will not be prohibited from entering into a “business combination” with MAA as an “interested shareholder” (in each case as such term is used in Sections 14-2-1131, 14-2-1132 and 14-2-1133 of the GBCC) as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, and no other state “fair price”, “moratorium”, “control share acquisition” or other similar anti-takeover statute or regulation (collectively, “ Takeover Statutes ”) as in effect on the date of this Agreement is applicable to this Agreement, the Parent Merger or the other transactions contemplated by this Agreement. None of Post or Post LP or any of their respective controlled Affiliates beneficially owns (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, or is the record holder of, or is a party to any contract (other than this Agreement) for the purpose of acquiring, holding, voting or disposing of, in each case, any shares of capital stock of MAA.

Section 4.26  Related Party Transactions . Except as set forth in Section 4.26 of the Post Disclosure Letter or in the Post SEC Documents filed and publicly available through and including the date of this Agreement or as permitted by this Agreement, from January 1, 2014 through the date of this Agreement there have been no transactions, agreements, arrangements or understandings between Post or any Post Subsidiary, on the one hand, and any Affiliates (other than Post Subsidiaries) of Post or other Persons, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K promulgated by the SEC.

Section 4.27  No Dissenter’s Rights . No dissenters’ or appraisal rights shall be available to the holders of Post Common Stock, Post OP Units, Post Series A Preferred Stock or any other security of Post or its Subsidiaries as a result of, or in connection with, the Mergers and the other transactions contemplated by this Agreement.

Section 4.28  No Other Representations and Warranties . Except for the representations or warranties expressly set forth in this Article IV , no Post Party nor any of their Affiliates nor any other person on behalf of any Post Party has made any representation or warranty, expressed or implied, with respect to Post or any of the Post Subsidiaries, their respective businesses, operations, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including

 

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the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any information regarding Post or the Post Subsidiaries, and no MAA Party nor any of their Affiliates nor any other person on behalf of any MAA Party has relied on any representation or warranty except for those expressly set forth in this Article IV .

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF MAA

Except (a) as set forth in the disclosure letter that has been prepared by the MAA Parties and delivered by the MAA Parties to the Post Parties in connection with the execution and delivery of this Agreement (the “ MAA Disclosure Letter ”) (it being agreed that (i) disclosure of any item in any section of the MAA Disclosure Letter with respect to any Section or subsection of Article V of this Agreement shall be deemed disclosed with respect to any other Section or subsection of Article V of this Agreement to the extent such relationship is reasonably apparent; provided , that nothing in the MAA Disclosure Letter is intended to broaden the scope of any representation or warranty of the MAA Parties made herein and (ii) no reference to or disclosure of any item or other matter in the MAA Disclosure Letter shall be construed as an admission or indication that (A) such item or other matter is material, (B) such item or other matter is required to be referred to or disclosed in the MAA Disclosure Letter or (C) any breach or violation of applicable Laws or any contract, agreement, arrangement or understanding to which MAA or any of the MAA Subsidiaries is a party exists or has actually occurred), or (b) other than with respect to representations or warranties set forth in Section 5.12 , as disclosed in publicly available MAA SEC Documents, filed with, or furnished to, as applicable, the SEC on or after January 1, 2013 and prior to the date of this Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” (but including any description of historic facts or events included therein) and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer (but including any description of historic facts or events included therein) or other statements that are predictive or forward-looking in nature), the MAA Parties hereby jointly and severally represent and warrant to the Post Parties that:

Section 5.1  Organization and Qualification; Subsidiaries .

(a) MAA is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Tennessee and has the requisite organizational power and authority and any necessary governmental authorization to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. MAA is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a MAA Material Adverse Effect.

(b) Each MAA Subsidiary is duly organized, validly existing and in good standing (to the extent applicable) under the Laws of the jurisdiction of its incorporation or organization, as the case may be, and has the requisite organizational power and authority and any necessary govern


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