COLONIAL PROPERTIES TRUST
(an Alabama real estate investment
trust)
10,530,000 Common Shares of
Beneficial Interest, $.01 par value per share
Dated:
September 30, 2009
Colonial Properties Trust
(an Alabama real estate investment trust)
10,530,000 Common Shares of Beneficial Interest, $.01 par value per
share
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
One Bryant
Park
New York, New York 10036
Wells Fargo
Securities, LLC
375 Park Ave.
New York, NY 10152
UBS Securities
LLC
677 Washington Boulevard
Stamford, Connecticut 06901
as
Representatives of the several Underwriters listed in
Schedule A hereto
Colonial
Properties Trust, an Alabama real estate investment trust (the
“Company”), and Colonial Realty Limited Partnership, a
limited partnership organized under the laws of the State of
Delaware (the “Operating Partnership”), of which the
Company is the sole general partner, each confirms its agreement
with Merrill Lynch, Pierce, Fenner & Smith Incorporated
(“Merrill Lynch”), Wells Fargo Securities, LLC
(“Wells Fargo”), UBS Securities LLC (“UBS”)
and each of the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch, Wells Fargo and
UBS are acting as representatives (in such capacity, the
“Representatives”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of common
shares of beneficial interest, $.01 par value per share, of the
Company (“Common Shares”) set forth in said
Schedule A, and with respect to the grant by the Company to
the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of
1,579,500 additional Common Shares to cover overallotments, if any.
The aforesaid 10,530,000 Common Shares (the “Initial
Securities”) to be purchased by the Underwriters and all or
any part of the 1,579,500 Common Shares subject to the option
described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the
“Securities.”
Each of the
Company and the Operating Partnership understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered.
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) a shelf registration statement on
Form S-3 (No. 333-158081), including the related base
prospectus, covering the registration of common shares of
beneficial interest under the Securities Act of 1933, as amended
(the “1933 Act”), and the offer and sale thereof from
time to time in accordance with Rule 415 of the rules and
regulations promulgated under the 1933 Act (the “1933 Act
Regulations”). Such
registration
statement has been declared effective by the Commission. Promptly
after the execution and delivery of this Agreement, the Company
will prepare and file a prospectus relating to the Securities in
accordance with the provisions of Rule 430B of the 1933 Act
Regulations (“Rule 430B”) and paragraph
(b) of Rule 424 of the 1933 Act Regulations
(“Rule 424(b)”). Any information included in such
prospectus that was omitted from such registration statement at the
time it became effective but that is deemed to be part of and
included in such registration statement pursuant to Rule 430B
is referred to as “Rule 430B Information.” Each
prospectus used in connection with the offering of the Securities
that omitted Rule 430B Information, is herein called a
“preliminary prospectus.” Such registration statement,
at any given time, including the amendments thereto at such time,
the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at such time and the documents otherwise
deemed to be a part thereof or included therein by 1933 Act
Regulations, is herein called the “Registration
Statement”; provided , however , that the term
“Registration Statement” shall be deemed to include
information contained in the final prospectus relating to the
Securities that is retroactively deemed to be a part of such
registration statement (as amended) as of the time specified in
Rule 430B of the 1933 Act Regulations. Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the “Rule 462(b) Registration
Statement” and after such filing the term “Registration
Statement” shall include the Rule 462(b) Registration
Statement. The final prospectus and final prospectus supplement, in
the form first furnished to the Underwriters for use in connection
with the offering of the Securities, including the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at the time of the execution of this
Agreement are herein collectively called the
“Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement, any preliminary prospectus, the Prospectus or the
General Disclosure Package (as defined herein) (or other references
of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration
Statement, any preliminary prospectus, the Prospectus or the
General Disclosure Package, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus, the Prospectus or the
General Disclosure Package shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934
(the “1934 Act”) which is incorporated by reference in
or otherwise deemed by the 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary
prospectus, the Prospectus or the General Disclosure Package, as
the case may be, after the execution of this Agreement.
SECTION 1.
Representations and Warranties.
(a)
Representations and Warranties by the Company and the Operating
Partnership . Each of the Company and the Operating Partnership
represents and warrants to each Underwriter as of the date hereof,
the Applicable Time referred to in Section 1(a)(i) hereof and
as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance
with Registration Requirements . The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendment thereto has become effective under the
1933 Act, and no stop order suspending the effectiveness of the
Registration
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Statement, any
Rule 462(b) Registration Statement or any post-effective amendment
thereto has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission or by
the state securities authority of any jurisdiction, and any request
on the part of the Commission for additional information has been
complied with.
At the respective
times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto became
effective, at each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied, complies and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations, and did not, does not and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading.
Neither the
Prospectus nor any amendments or supplements thereto (including any
prospectus wrapper), at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery),
included, includes or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
Each preliminary
prospectus (including the prospectus or prospectuses filed as part
of the Registration Statement when originally filed or any
amendment thereto) complied when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations and any such
preliminary prospectus and the Prospectus delivered or made
available to the Underwriters for use in connection with this
offering was and, at the time of such delivery, will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
As of the
Applicable Time (as defined below), neither (x) any Issuer
General Use Free Writing Prospectus (as defined below) issued at or
prior to the Applicable Time, the Statutory Prospectus (as defined
below) and the information included on Schedule B hereto, all
considered together (collectively, the “General Disclosure
Package”), nor (y) any individual Issuer Limited Use
Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 7:00 a.m. (Eastern time) on October 1, 2009
or such other time as agreed by the Company and the
Representatives.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is
a written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case in
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the form filed
or required to be filed with the Commission or, if not required to
be filed, in the form retained in the Company’s records
pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in
Schedule D hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to
the Securities that is included in the Registration Statement
immediately prior to that time, including any document incorporated
by reference therein and any preliminary or other prospectus deemed
to be a part thereof.
Each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or
notifies the Representatives as described in Section 3(e), did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, the General Disclosure Package or the
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through Merrill Lynch expressly for use
therein.
(ii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, at
the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”); no
such document when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and no such
document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading.
(iii)
Independent Accountants . PricewaterhouseCoopers LLP and
Deloitte LLP at all relevant times are, were or have been
independent public accountants with respect to the Company and the
Operating Partnership as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial
Statements . The historical financial statements of the Company
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the financial position of the Company, its
consolidated Subsidiaries (as defined below) and the Operating
Partnership as of the dates indicated and the results of operations
for the periods specified; the financial statements of any other
entities or businesses included or incorporated by reference in the
Registration Statement, the General
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Disclosure
Package or the Prospectus present fairly in all material respects
the financial position of each such entity or business, as the case
may be, and its consolidated subsidiaries (if any) at the dates
indicated and the results of operations for the periods specified;
except as otherwise stated in the Registration Statement, the
General Disclosure Package and the Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States (“generally
accepted accounting principles” or “GAAP”)
applied on a consistent basis and comply with the applicable
accounting requirements of the 1933 Act (including, without
limitation, Rule 3-14 of Regulation S-X promulgated by
the Commission), and all adjustments necessary for a fair
presentation of the results for such periods have been made; the
supporting schedules included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus present fairly the information required to be stated
therein; and the selected financial data (both historical and pro
forma) included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the information shown therein and have been compiled
on a basis consistent with the related financial statements
presented therein; all “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the
Commission) contained in the Registration Statement, the General
Disclosure Package or the Prospectus comply in all material
respects with Regulation G of the 1934 Act and Item 10 of
Regulation S-K under the 1933 Act, to the extent
applicable.
(v) Revenue and
Expense Presentation; Pro Forma Financial Statements . The
historical summaries of revenue and certain operating expenses
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the revenue and those operating expenses included in
such summaries of the properties related thereto for the periods
specified in conformity with generally accepted accounting
principles; the pro forma consolidated financial statements
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the pro forma financial position of the Company and
its consolidated Subsidiaries as of the dates indicated and the
results of operations for the periods specified; and such pro forma
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with the audited financial statements of the Company
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the 1933
Act (including, without limitation, Regulation S-X promulgated
by the Commission), and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of
such statements.
(vi) No
Material Adverse Change in Business . Since the respective
dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus,
except as otherwise stated therein, (a) there has been no
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company, and its Subsidiaries (“Subsidiaries,” as used
in this Agreement, includes consolidated corporations, partnerships
and other entities, including, the Operating Partnership, Colonial
Properties Services Limited Partnership (the “Management
Partnership”) and Colonial Properties Services, Inc. (the
“Management Corporation”), and includes direct and
indirect Subsidiaries, if any) considered as one enterprise, or any
of the real property or improvements thereon owned by either the
Company or any of its Subsidiaries (each individually a
“Property” and collectively the
“Properties”), whether or not arising in the ordinary
course of business, (b) no casualty loss, condemnation or
other adverse event with respect to the Properties, which
when
5
considered
together with all other such losses, condemnations or events, are
material to the Company and its Subsidiaries considered as one
enterprise, has occurred, (c) there have been no transactions
entered into by the Company or any of its Subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its Subsidiaries considered as one
enterprise, and (d) except for regular quarterly dividends on
the Company’s Common Shares or dividends or distributions
declared, paid or made in accordance with the terms of any series
of the Company’s preferred shares, there has been no dividend
or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(vii) Good
Standing of the Company . The Company has been duly organized
and is validly existing as a real estate investment trust in good
standing under the laws of the State of Alabama, with power and
authority to own, lease and operate its Properties and to conduct
its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement, and the Company is
duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered
as one enterprise (a “Material Adverse
Effect”).
(viii)
Agreement of Limited Partnership; Good Standing of the Operating
Partnership . The Third Amended and Restated Agreement of
Limited Partnership of the Operating Partnership, as amended and
restated, has been duly and validly authorized, executed and
delivered by the Company, as general partner of the Operating
Partnership, and by the limited partners of the Operating
Partnership and is a valid and binding agreement of the Company and
such limited partners of the Operating Partnership, enforceable in
accordance with its terms, except as limited by (a) the effect
of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors or (b) the effect of
general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought. The Operating
Partnership has been duly formed and is validly existing and is in
good standing under the laws of the State of Delaware, has power
and authority to own, lease and operate its Properties and to
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not have a Material Adverse Effect.
(ix) Good
Standing of Subsidiaries . Each Subsidiary of the Company has
been duly formed and is validly existing and in good standing under
the laws of the jurisdiction of its organization, has power and
authority to own, lease and operate its Properties and to conduct
its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not
have a Material Adverse Effect. Except as otherwise stated in the
Registration Statement, the General Disclosure Package and the
Prospectus, all of the issued and outstanding capital stock or
other ownership interests in each such Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable
and are owned by the Company, directly or through Subsidiaries,
free and clear of any security interest, mortgage,
6
pledge, lien,
encumbrance, claim or equity, except for security interests granted
in respect of indebtedness of the Company or any of its
Subsidiaries and described in the Registration Statement, the
General Disclosure Package and the Prospectus; and none of the
outstanding capital stock or other ownership interests in such
Subsidiary was issued in violation of any preemptive rights, rights
of first refusal or other similar rights of any securityholder of
such subsidiary or any other person.
(x) Partnership
and Joint Venture Agreements . Each of the partnership and
joint venture agreements to which the Company or any of its
Subsidiaries is a party has been duly authorized, executed and
delivered by the parties thereto and constitutes the valid
agreement thereof, enforceable in accordance with its terms, except
as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding
therefor may be brought; and the execution, delivery and
performance of any of such agreements by the Company or any of its
Subsidiaries, as applicable, did not, at the time of execution and
delivery, and does not constitute a breach of, or default under,
the charter, by-laws, partnership agreement (or other
organizational documents) of such party or any material contract,
lease or other instrument to which such party is a party or by
which its properties may be bound or any law, administrative
regulation or administrative or court decree.
(xi)
Capitalization . The authorized, issued and outstanding
capital shares of the Company is as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus under
“Description of Common Shares of Beneficial Interest”
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment or stock
purchase plans, employee and director stock option or restricted
stock plans or upon the exercise of options or convertible
securities referred to in the Registration Statement, the General
Disclosure Package and the Prospectus, including common shares
issuable upon redemption of limited partnership units in the
Operating Partnership); and such shares have been duly authorized
and validly issued and are fully paid and non-assessable and are
not subject to preemptive or other similar rights.
(xii)
Authorization of Agreement by Company . The Company has full
right, power and authority under its organizational documents to
enter into this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company.
(xiii)
Authorization of Agreement by Operating Partnership . The
Operating Partnership has full right, power and authority under its
organizational documents to enter into this Agreement and this
Agreement has been duly authorized, executed and delivered by the
Operating Partnership.
(xiv)
Authorization and Description of Securities . The Securities
have been duly authorized by the Company for issuance and sale
pursuant to this Agreement, and such Securities, when issued and
delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued,
fully paid and non-assessable, and the issuance of the Securities
will not be subject to preemptive or other similar rights; the
Securities being sold pursuant to this Agreement conform in all
material respects to all statements relating thereto contained in
the Registration Statement, the General Disclosure Package and the
Prospectus. The certificates, if any, used by the Company to
evidence the Securities shall be in valid and sufficient
form.
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(xv) Absence of
Defaults and Conflicts . None of the Company or any of its
Subsidiaries is (i) in violation of its charter, by-laws,
partnership agreement or other organizational documents or
(ii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any of its Subsidiaries
is subject, except, in the case of (ii), for any such violation or
default that would not have a Material Adverse Effect, and the
execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and compliance
by the Company and the Operating Partnership, each severally, with
the obligations hereunder have been duly authorized by all
necessary corporate, trust or partnership action, and will not
materially conflict with or constitute a material breach of, or
material default under, or result in the creation or imposition of
any material lien, charge or encumbrance upon any property or
assets of the Company or any of its Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its Subsidiaries is a
party or by which any of them may be bound, or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the
charter, by-laws, the partnership agreement or other organizational
documents of the Company or any of its Subsidiaries, or any
applicable law, administrative regulation or administrative or
court decree.
(xvi) Absence
of Labor Dispute . No labor dispute with the employees of the
Company or any of its Subsidiaries exists or, to the knowledge of
the Company, is imminent, which, in any such case, may reasonably
be expected to result in a Material Adverse Effect.
(xvii) Absence
of Proceedings . There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company or any of
its Subsidiaries threatened against or affecting the Company or any
of its Subsidiaries which is required to be disclosed in the
General Disclosure Package or the Prospectus (other than as
disclosed therein), or which may reasonably be expected to result
in a Material Adverse Effect, or which may reasonably be expected
to materially and adversely affect the consummation of this
Agreement or the transactions contemplated herein; all pending
legal or governmental proceedings to which the Company or any of
its Subsidiaries is a party or of which any property or assets of
the Company or any of its Subsidiaries is subject which are not
described in the General Disclosure Package and the Prospectus,
including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not expected to result in a
Material Adverse Effect; and there are no contracts or documents of
the Company or any of its Subsidiaries which are required to be
filed as exhibits to the Registration Statement by the 1933 Act
which have not been so filed.
(xviii)
Accuracy and Description of Exhibits . There are no
contracts or documents which are required to be described in the
Registration Statement, the General Disclosure Package, the
Prospectus or the documents incorporated by reference therein or to
be filed as exhibits thereto, which have not been so described and
filed as required; and the statements in the Prospectus under the
headings “Description of Common Shares of Beneficial
Interest,” “Material Federal Income Tax
Considerations” and “The Alabama Real Estate Investment
Trust Act” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings in all material respects.
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(xix)
Possession of Intellectual Property . The Company and its
Subsidiaries own or possess any trademarks, service marks, trade
names or copyrights required in order to conduct their respective
businesses as described in the Prospectus, other than those the
failure to possess or own would not have a Material Adverse
Effect.
(xx) Absence of
Further Requirements . No authorization, approval, permit or
consent of any court or governmental authority or agency is
necessary in connection with the consummation by the Company or the
Operating Partnership of the transactions contemplated by this
Agreement, except such as have been obtained or as may be required
under the 1933 Act, state securities laws, real estate syndication
laws or under the rules and regulations of the Financial Industry
Regulatory Authority (“FINRA”).
(xxi)
Possession of Licenses and Permits . The Company and its
Subsidiaries possess such certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses
as described in the Registration Statement, the General Disclosure
Package and the Prospectus, other than those the failure to possess
or own would not have a Material Adverse Effect, and neither the
Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(xxii) Title to
Property . Except as otherwise disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus and
except as would not have a Material Adverse Effect: (a) the
Company or its Subsidiaries have good and marketable title in fee
simple to all real property and improvements described in the
Registration Statement, the General Disclosure Package and the
Prospectus as being owned in fee; (b) all liens, charges,
encumbrances, claims or restrictions on or affecting the real
property and improvements owned by the Company or any of its
Subsidiaries which are required to be disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus are
disclosed therein; (c) none of the Company or any of its
Subsidiaries, or to the knowledge of the Company, any lessee of any
portion of the real property or improvements owned by the Company
or any of its Subsidiaries, is in default under any of the leases
pursuant to which the Company or any of its Subsidiaries leases
such real property or improvements, and the Company and its
Subsidiaries know of no event which, but for the passage of time or
the giving of notice, or both, would constitute a default under any
of such leases; (d) all the real property and improvements
owned by the Company or its Subsidiaries comply with all applicable
codes and zoning laws and regulations; and (e) the Company and
its Subsidiaries have no knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that
would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property or
improvements owned by the Company, any of its Subsidiaries or the
Operating Partnership.
(xxiii)
Investment Company Act . Neither the Company nor any of its
Subsidiaries is required to be registered as an “investment
company” under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(xxiv)
Environmental Laws . Except as otherwise disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, each of the Company and the Operating Partnership has
no knowledge of: (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, “ Hazardous Materials
”) on any of the Properties or (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or from the Properties as
a
9
result of any
construction on or operation and use of the Properties, which
presence or occurrence would have a Material Adverse Effect; and in
connection with the construction on or operation and use of the
Properties, each of the Company, and the Operating Partnership has
no knowledge of any material failure to comply with all applicable
local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport
and disposal of any Hazardous Materials that could have a Material
Adverse Effect.
(xxv) Absence
of Registration Rights . There are no persons with registration
or other similar rights to have any securities registered pursuant
to the Registration Statement.
(xxvi) New York
Stock Exchange . The outstanding Common Shares and the
Securities have been approved for listing, subject only to official
notice of issuance, on the New York Stock Exchange
(“NYSE”), and are registered pursuant to Section 12(b)
of the 1934 Act, and the Company has taken no action designed to,
or likely to have the effect of, terminating the registration of
the Securities under the 1934 Act or delisting any such securities
from the NYSE, nor has the Company received any notification that
the Commission or the NYSE is contemplating terminating such
registration or listing.
(xxvii) Tax
Returns . The Company and its Subsidiaries have filed all
foreign, federal, state and local tax returns that are required to
be filed or have requested extensions thereof, except where the
failure so to file would not, individually or in the aggregate,
have a Material Adverse Effect, and have paid all taxes required to
be paid by them and any other assessment, fine or penalty levied
against any of them, to the extent that any of the foregoing is due
and payable, except for any such tax, assessment, fine or penalty
that is currently being contested in good faith by appropriate
actions and except for such taxes, assessments, fines or penalties
the nonpayment of which would not, individually or in the
aggregate, have a Material Adverse Effect.
(xxviii)
Insurance . The Company or its Subsidiaries has adequate
title insurance on each Property owned in fee by the Company or its
Subsidiaries.
(xxix)
Accounting Controls and Disclosure Controls . The Company
and its Subsidiaries maintain and have maintained effective
internal control over financial reporting as defined in
Rule 13a-15 under the 1934 Act and a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorizations,
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (C) access to assets is
permitted only in accordance with management’s general or
specific authorization, and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the Registration Statement, the
General Disclosure Package and the Prospectus, since the end of the
Company’s most recent audited fiscal year, to the knowledge
of the Company there has been (1) no material weakness in the
Company’s internal control over financial reporting (whether
or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. The
Company and its Subsidiaries employ and have employed disclosure
controls and procedures as defined in Rule 13a-15 under the
1934 Act that are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits
under the 1934 Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s
rules
10
and forms, and
is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxx)
Compliance with the Sarbanes-Oxley Act . There is and has
been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
materially to comply with any provision of the Sarbanes-Oxley Act
with which any of them is required to comply, including
Section 402 related to loans and Sections 302 and 906 related
to certifications.
(xxxi) Actively
Traded Security . The Common Shares are “actively traded
securities” excepted from the requirements of Rule 101
of Regulation M under the 1934 Act by subsection (c)(1) of
such rule.
(xxxii) Absence
of Manipulation . Neither the Company nor any of its
Subsidiaries, nor any of the officers, directors, trustees or
partners thereof has taken, nor will any of them take, directly or
indirectly, any action resulting in a violation of
Regulation M under the 1934 Act or designed to cause or result
in, or which has constituted or which reasonably might be expected
to constitute, the stabilization or manipulation of the price of
the Securities or facilitation of the sale or resale of the
Securities.
(xxxiii) REIT
Status . The Company has qualified as a real estate investment
trust (“REIT”) for its taxable years ended
December 31, 1996, December 31, 1997, December 31, 1998,
December 31, 1999, December 31, 2000, December 31,
2001, December 31, 2002, December 31, 2003,
December 31, 2004, December 31, 2005, December 31,
2006, December 31, 2007 and December 31, 2008, and the
Company is organized and operates in a manner that will enable it
to continue to qualify to be taxed as a REIT under the Internal
Revenue Code of 1986, as amended (the “ Code ”),
for the taxable year ending December 31, 2009 and
thereafter.
(xxxiv) Foreign
Corrupt Practices Act . Neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or other person acting on
behalf of the Company or any of its Subsidiaries is aware of or has
taken any action, directly or indirectly, that has resulted or
would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder (collectively, the “ FCPA ”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA, and the Company and its Subsidiaries and, to the knowledge of
the Company, its other affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith.
(xxxv) Money
Laundering Laws . The operations of the Company and its
Subsidiaries are in all material respects in compliance with
applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related
or similar applicable rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
“ Money Laundering Laws ”) and no action, suit
or proceeding by or before any court or governmental agency,
authority or body or any arbitrator
11
involving the
Company or any of its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(xxxvi)
OFAC . Neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any director, officer, agent,
employee, affiliate or person acting on behalf of the Company or
any of its Subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the Company
will not knowingly directly or indirectly use any of the proceeds
received by the Company from the sale of Securities contemplated by
this Agreement, or lend, contribute or otherwise make available any
such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(xxxvii)
Lending Relationship . Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any of its Subsidiaries has any
outstanding borrowings from, or is a party to any line of credit,
credit agreement or other credit facility or otherwise has a
borrowing relationship with, any bank or other lending institution
affiliated with the Underwriters.
(xxxviii)
Transfer Taxes . There are no stock or other transfer taxes,
stamp duties, capital duties or other similar duties, taxes or
charges payable in connection with the execution or delivery of
this Agreement by the Company and the Operating Partnership or the
issuance or sale by the Company of the Securities.
(xxxix) Related
Party Transactions . There are no business relationships or
related party transactions involving the Company or any of its
Subsidiaries or, to the knowledge of the Company, any other person
that are required to be described in the General Disclosure Package
or the Prospectus pursuant to Item 404 of Regulation S-K
that have not been described as required.
(xl) ERISA
. (i) Each “employee benefit plan” (within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group”
(defined as an organization which is a member of a controlled group
of corporations within the meaning of Section 414 of the Code)
would have any liability (each a “Plan”) has been
maintained in compliance with its terms and with the requirements
of all applicable statutes, rules and regulations including ERISA
and the Code; (ii) with respect to each Plan subject to Title
IV of ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur, (b) no “accumulated funding
deficiency” (within the meaning of Section 302 of ERISA or
Section 412 of th
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