Execution Version
Exhibit 1.1
American Campus Communities, Inc.
8,000,000 Shares of Common Stock
(Par
Value $0.01 Per Share)
UNDERWRITING AGREEMENT
April 17, 2008
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Merrill Lynch
& Co.
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Merrill Lynch,
Pierce, Fenner & Smith Incorporated
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KeyBanc Capital
Markets Inc.
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as Representatives
of the several Underwriters
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c/o Merrill Lynch
& Co.
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Merrill Lynch,
Pierce, Fenner & Smith Incorporated
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4 World Financial
Center
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New York, New York
10080
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Ladies
and Gentlemen:
American Campus Communities, Inc., a
Maryland corporation (the “Company”), proposes to sell
to the several underwriters named in Schedule I hereto
(the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
8,000,000 shares of Common Stock, $0.01 par value (“Common
Stock”), of the Company (said shares to be issued and sold by
the Company being hereinafter called the “Underwritten
Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to 1,200,000 additional
shares of Common Stock to cover overallotments (the “Option
Securities;” the Option Securities, together with the
Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional
Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
shelf registration statement on Form S-3
(No. 333-129131), including the related preliminary prospectus
or prospectuses, covering the registration of debt securities,
shares of Common Stock, shares of preferred stock and warrants
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 of the
Commission promulgated under the 1933 Act (the “1933 Act
Regulations”). Such registration statement has been declared
effective by the Commission. Promptly after execution and delivery
of this Agreement, the Company will prepare and file a prospectus
supplement relating to the Securities in accordance with the
provisions of Rule 430B (“Rule 430B”) of the
1933 Act Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any
information included in such prospectus
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supplement 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 each time of effectiveness under the 1933 Act and the 1933 Act
Regulations prior to the execution of this Agreement, including the
amendments thereto to 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 or incorporated 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 supplement relating to the Underwritten
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 the final prospectus
supplement, in the form first furnished or made available 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 or 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 include all such financial
statements and schedules and other information which is
incorporated by reference in or otherwise deemed by 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 include the filing of
any document under the Securities Exchange Act of 1934, as amended
(the “1934 Act”), which is or is deemed to be
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 most
recent effective date prior to the execution of this Agreement, in
the case of the Registration Statement, or the respective issue
dates, in the case of the Prospectus, any preliminary prospectus
and the General Disclosure Package.
1.
Representations and Warranties . Each of the Company and
American Campus Communities Operating Partnership LP, a Maryland
limited partnership (the “Operating Partnership” and
together with the Company and American Campus Communities Holdings,
LLC, a Maryland limited liability company and wholly owned
subsidiary of the Company (“ACCHL”), the
“Transaction Entities”), jointly and severally
represents and
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warrants
to, and agrees with, each Underwriter as of the date hereof, the
Applicable Time referred to in Section 1(a) hereof, as of the
Closing Date referred to in Section 3 hereof, and as of each
Date of Delivery referred to in Section 3 hereof as
follows:
(a) The Company meets the
requirements for use of Form S-3 under the 1933 Act. The
Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement or
any part thereof 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 amendments thereto became effective, at each
deemed effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations, the 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, at the time the Prospectus or any such
amendment or supplement was issued, at the Closing Date and at any
Date of Delivery included, includes or will include an untrue
statement of a material fact or omitted, omits 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.
Any preliminary prospectus (including
the prospectus filed as part of the Registration Statement 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 will, at the time of such delivery, 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), any Issuer Free Writing Prospectus (as defined below)
issued at or prior to the Applicable Time, the Statutory Prospectus
(as defined below) and the information agreed to in writing by the
Company and the Underwriters as the information to be conveyed
orally by the Underwriters to purchasers of the Securities at the
Applicable Time, as set forth on Schedule II , all
considered together (collectively, the “General Disclosure
Package”) did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
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The representations and warranties in
the preceding three paragraphs shall not apply to statements in or
omissions from the Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or
supplements thereto, or the General Disclosure Package made in
reliance upon and in conformity with information furnished to the
Company in writing by the Representatives on behalf of the
Underwriters expressly for use in the Registration Statement or any
post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, or the General Disclosure
Package.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
7:00 a.m. (Eastern time) on April 18, 2008 or such other time
as agreed by the Company and the Underwriters.
“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 (including any identified on Schedule II
hereto) 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 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).
“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 the documents incorporated by reference therein,
and any preliminary prospectus supplement or other prospectus
deemed to be a part of such Registration Statement as of such
time.
(b) The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement 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”), as applicable, and, when read together
with the other information in the Prospectus, (a) at the time
the Registration Statement became effective, (b) at the
earlier of the time the Prospectus was first used and the date and
time of the first contract of sale of the Securities in this
offering and (c) at the Closing Date and the Date of Delivery,
if any, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(c) No stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued under the 1933 Act and no proceedings for that purpose
have been instituted or, to the knowledge of any of the Transaction
Entities,
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threatened or
contemplated by the Commission or by the state securities authority
of any jurisdiction. No order preventing or suspending the use of
the Prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of any of the Transaction
Entities, threatened or contemplated by the Commission or by the
state securities authority of any jurisdiction.
(d) As of the date of the execution
and delivery of this Agreement (with such date being used as the
determination date for purposes of this clause), the Company was
not and is not an Ineligible Issuer (as defined in Rule 405 of
the 1933 Act Regulations), without taking account of any
determination by the Commission pursuant to Rule 405 of the
1933 Act Regulations that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Each Issuer Free Writing
Prospectus identified on Schedule II hereto, 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 Underwriters as
described in Section 5(c), did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement 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 foregoing
sentence does not apply to statements in or omissions from any such
Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by the Underwriters
specifically for use therein.
(f) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with full power
and authority (corporate and other) to own or lease, as the case
may be, its properties and to operate its properties and 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 do business as a foreign corporation and is in
good standing in all other jurisdictions in which its ownership or
lease of property or the operation of its properties or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or reasonably be expected to
have, individually or in the aggregate, a material adverse effect
on the condition (financial or otherwise), business, earnings,
properties, assets or prospects of the Transaction Entities and the
Subsidiaries (as defined in Section 1(h)), taken as a whole,
whether or not arising from transactions in the ordinary course of
business (“Material Adverse Effect”).
(g) The Operating Partnership has
been duly formed and is validly existing as a limited partnership
in good standing under the laws of the State of Maryland, is duly
qualified to do business and is in good standing as a foreign
limited partnership in each jurisdiction in which its ownership or
lease of property or the operation of its properties or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or reasonably be expected to
have, a Material Adverse Effect, and has full power and authority
necessary to own or lease, as the case may be, its
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properties and
to operate its properties and 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; ACCHL has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the
State of Maryland, is duly qualified to do business and is in good
standing as a foreign limited liability company in each
jurisdiction in which its ownership or lease of property or the
operation of its properties or the conduct of its business requires
such qualification, except where the failure to so qualify would
not have, or reasonably be expected to have, a Material Adverse
Effect, and has full power and authority necessary to own or lease,
as the case may be, its properties and to operate its properties
and conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus; and
ACCHL is the sole general partner of the Operating Partnership.
Additionally, the Company will contribute the net proceeds from the
sale of the Underwritten Securities and, to the extent any portion
of such overallotment option is exercised subsequent to the Closing
Date, the Option Securities to the Operating Partnership in
exchange for a number of common units of limited partnership in the
Operating Partnership (“OP Units”) equal to the number
of Underwritten Securities and, if applicable, Option Securities
issued.
(h) Each direct or indirect
subsidiary of the Company, other than ACCHL and the Operating
Partnership (each, a “Subsidiary” and collectively, the
“Subsidiaries”), has been duly formed and is validly
existing as a corporation, limited partnership or limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction of its organization, with full power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus, except where the
failure to be in good standing would not have, or be reasonably
expected to have, a Material Adverse Effect, and is duly qualified
to do business as a foreign corporation, partnership or limited
liability company in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or be reasonably expected to
have, a Material Adverse Effect; all of the issued and outstanding
capital stock or other ownership interests of ACCHL and each
Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and were offered in compliance with
all applicable federal and state securities laws in all material
respects; and except as described in the Registration Statement,
the General Disclosure Package and the Prospectus, ACCHL’s
membership interests and each Subsidiary’s capital stock or
other ownership interests will, immediately following the Closing
Date and each Date of Delivery, be owned by the Company, directly
or through subsidiaries, free and clear of any security interests,
liens, mortgages, encumbrances, pledges, claims, defects or other
restrictions of any kind (collectively, “Liens”),
except where such Liens would not have, or reasonably be expected
to have, a Material Adverse Effect. None of such equity interests
were issued in violation of the preemptive or other similar rights
of any securityholder of ACCHL or such Subsidiary. Except as
described in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or
subscribe for equity interests or other securities of ACCHL or any
Subsidiary.
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(i) The Company’s authorized
equity capitalization is as set forth in the documents incorporated
by reference in the Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Prospectus under the caption “Description of
Capital Stock;” the outstanding shares of Common Stock are
duly listed and admitted and authorized for trading on the New York
Stock Exchange, Inc. (the “NYSE”) and, at the Closing
Date, the Securities will have been approved for listing on the
NYSE, subject to official notice of issuance; and, except as set
forth in the Registration Statement, the General Disclosure Package
and the Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding.
(j) The Securities and all other
outstanding shares of capital stock of the Company, including any
warrants or Restricted Stock Units (“RSUs”), have been
duly and validly authorized; all outstanding shares of capital
stock of the Company are, and, when the Securities to be issued and
sold by the Company have been issued and delivered and paid for in
accordance with this Agreement on the Closing Date and each Date of
Delivery, such Securities will have been, validly issued, fully
paid and nonassessable, have been, or will be, offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws) in all material respects and
will conform, in all material respects, to the description thereof
contained in the Registration Statement, the General Disclosure
Package and the Prospectus and will be substantially in the form
filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement; and the stockholders of the Company
have no preemptive rights with respect to the Securities to be
issued and sold by the Company. Upon payment of the purchase price
and issuance and delivery of the Securities to be issued and sold
by the Company in accordance herewith, the Underwriters will
receive good, valid and marketable title to such Securities, free
and clear of all Liens. The certificates to be used to evidence the
Securities will be in substantially the form filed as an exhibit to
the Registration Statement and will, on the Closing Date and each
Date of Delivery, be in proper form and will comply in all material
respects with all applicable legal requirements, the requirements
of the charter and by-laws of the Company and the requirements of
the NYSE.
(k) The outstanding OP Units have
been duly authorized for issuance by the Operating Partnership, and
are validly issued. The OP Units have been offered, issued and sold
in compliance with all applicable laws (including, without
limitation, federal and state securities laws) in all material
respects and conform to the description thereof contained in the
Prospectus in all material respects. None of the OP Units or the
profit interest units (“PIUs”) were issued in violation
of the preemptive or other similar rights of any securityholder of
the Operating Partnership. Except as disclosed in the Prospectus,
there are no outstanding options, rights (preemptive or otherwise)
or warrants to purchase or subscribe for OP Units, PIUs or other
securities of the Operating Partnership.
(l) The OP Units to be issued by the
Operating Partnership in connection with the Company’s
contribution of the net proceeds from the sale of the Securities to
the
7
Operating
Partnership have been duly authorized for issuance by the Operating
Partnership to the Company, and at the Closing Date for the
Underwritten Securities or the Date of Delivery for the Option
Securities, as applicable, will be validly issued and fully paid.
Such OP Units will be exempt from registration or qualification
under the 1933 Act and applicable state securities laws. None of
the OP Units will be issued in violation of the preemptive or other
similar rights of any securityholder of the Operating
Partnership.
(m) Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings
between the Transaction Entities and any person that would give
rise to a valid claim against the Transaction Entities or any
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with this offering.
(n) Except as provided in the Amended
and Restated Agreement of Limited Partnership of the Operating
Partnership, as the same may be amended and/or restated from time
to time (the “Operating Partnership Agreement”), the
PIU Vesting Agreement related thereto, the Registration Rights and
Lock-up Agreement, dated as of March 1, 2006, between the
Company and each of the persons who are signatories thereto and the
Merger Agreement (as defined below), there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the 1933 Act with respect to any
securities or to require the Company to include such securities in
the securities registered pursuant to the Registration
Statement.
(o) None of the Transaction Entities
or the Subsidiaries (i) is in violation of its charter,
by-laws, certificate of formation, operating agreement or
partnership agreement or similar organizational documents,
(ii) is in default (whether with or without the giving of
notice or passage of time or both) in the performance or observance
of any obligation, agreement, term, covenant or condition contained
in a contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, ground lease, development agreement,
reciprocal easement agreement, deed restriction, utility agreement,
management agreement or other agreement or instrument to which it
is a party or by which it is bound, or to which any of the
Properties (as hereinafter defined) or any of its other property or
assets is subject (collectively, “Agreements and
Instruments”), or (iii) is in violation of any statute,
law, ordinance, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority to which it or the Properties or any
of its other properties or assets is subject, except, in the case
of clauses (ii) and (iii), for such defaults or violations
that would not have, or reasonably be expected to have, a Material
Adverse Effect.
(p) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required to be made or obtained by the
Transaction Entities or the Subsidiaries in connection with the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, filings or orders (i) as have been
obtained under the 1933 Act, (ii) as may be required under the
state securities or blue sky laws of any jurisdiction in connection
with the purchase and distribution of the
8
Securities by
the Underwriters in the manner contemplated herein and in the
Prospectus, and (iii) the absence of which would not have, or
reasonably be expected to have, a Material Adverse Effect.
(q) The execution, delivery and
performance of this Agreement by the Transaction Entities party
hereto and consummation of the transactions contemplated hereby do
not and will not (whether with or without the giving of notice or
passage of time or both) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default (or give rise to any right of termination, acceleration,
cancellation, repurchase or redemption) or Repayment Event (as
hereinafter defined) under, or result in the creation or imposition
of a Lien (other than those described in the Registration
Statement, the General Disclosure Package and the Prospectus) upon
any property or assets of any of the Transaction Entities or the
Subsidiaries pursuant to, (i) any statute, law, rule,
ordinance, regulation, judgment, order or decree of any court,
domestic or foreign, regulatory body, administrative agency,
governmental body, arbitrator or other authority, domestic or
foreign, having jurisdiction over any of the Transaction Entities
or the Subsidiaries or any of their properties or assets,
(ii) any term, condition or provision of any Agreements or
Instruments, or (iii) the charter, by-laws, certificate of
formation, operating agreement or partnership agreement or similar
organizational documents, as applicable, of any of the Transaction
Entities or the Subsidiaries, except, in the case of clauses
(i) and (ii), for such conflicts, breaches, defaults,
violations, rights, Repayment Events or Liens that are disclosed in
the Registration Statement, the General Disclosure Package and the
Prospectus or as would not have, or reasonably be expected to have,
a Material Adverse Effect. The Company has full power and authority
to authorize, issue and sell the Securities as contemplated by this
Agreement. As used herein, “Repayment Event” means any
event or condition which, without regard to compliance with any
notice or other procedural requirements, gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by any of the Transaction Entities or the
Subsidiaries.
(r) This Agreement has been duly and
validly authorized, executed and delivered by the Company and the
Operating Partnership and the Operating Partnership Agreement has
been duly and validly authorized, executed and delivered by the
Transaction Entities party thereto and, to the knowledge of the
Company, by each of the other parties thereto (other than the
Representatives); and each of this Agreement and the Operating
Partnership Agreement, assuming due authorization, execution and
delivery by the parties thereto (other than the Transaction
Entities), is a valid and binding agreement of each of the
Transaction Entities party thereto, enforceable against the
Transaction Entities party thereto in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar
laws relating to creditors’ rights and general principles of
equity and except as rights to indemnify and contribution
thereunder may be limited by applicable law or policies underlying
such law.
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(s) The Transaction Entities and the
Subsidiaries possess all certificates, authorities, licenses,
consents, approvals, permits and other authorizations
(“Licenses”) issued by appropriate governmental
agencies or bodies or third parties necessary to conduct the
business now operated by them or proposed to be operated by them,
are in compliance with the terms and conditions of all such
Licenses, and have not received any notice of proceedings relating
to the revocation or modification of any such Licenses except where
the failure to possess any such License or to comply with any of
its terms and conditions, or an adverse determination in any
proceeding, would not individually or in the aggregate have, or
reasonably be expected to have, a Material Adverse Effect.
(t) The consolidated financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly in all material
respects the consolidated financial position of the Company at the
dates indicated and the consolidated results of operations, change
in owners’ equity and cash flows of the Company for the
periods specified; and said financial statements have been prepared
in conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto
and subject to normal year-end adjustments in the case of any
unaudited interim financial statements) and have been prepared on a
consistent basis with the books and records of the Company. The
supporting schedules included or incorporated by reference in the
Registration Statement or the General Disclosure Package present
fairly in accordance with GAAP the information required to be
stated therein. The historical summaries of revenue and certain
operating expenses of properties included or incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly the revenues and
operating expenses included in such summaries for the periods
specified in conformity with GAAP. The unaudited pro forma
consolidated financial statements and the related notes thereto
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the pro forma consolidated results of operations and
financial position of the Company for the periods specified and
have been prepared in accordance with Rules 11-01 and 11-02 of
Regulation S-X, the Commission’s rules and guidelines
with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, and the related adjustments used therein give appropriate
effect to the transactions and circumstances referred to therein
and the pro forma columns therein reflect the proper application of
these adjustments to the corresponding historical financial
statement amounts (except as may be indicated in the notes thereto
and subject to normal year-end adjustments in the case of any
unaudited interim financial statements). The selected financial
data and the summary financial information 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 that of
the financial statements included or incorporated by reference in
the Registration Statement, the General Disclosure Package and the
Prospectus. No other historical or pro forma financial statements
(or schedules) are
10
required by the
1933 Act to be included or incorporated by reference in the
Registration Statement or the Prospectus. All disclosures contained
in the Registration Statement, the General Disclosure Package or
the Prospectus, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G under
the 1934 Act and Item 10 of Regulation S-K of the 1933
Act Regulations, to the extent applicable.
(u) Ernst & Young LLP, who
certified the financial statements, supporting schedules and
historical summaries of revenues and certain operating expenses for
the properties related thereto included or incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus and delivered the initial letter
referred to in Section 6(f) hereof, are independent registered
certified public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v) The Agreement and Plan of Merger,
dated as of February 11, 2008 (the “Merger
Agreement”), by and among GMH Communities Trust (“GMH
Trust”), GMH Communities, Inc. (“GMHI”), GMH
Communities, LP (“GMHLP” and, collectively with GMH
Trust and GMHI, the “GMH Entities”), the Company, the
Operating Partnership, American Campus Acquisition LLC (“ACCA
LLC”) and American Campus Acquisition Limited Partnership LP
(“ACCA LP” and, collectively with the Company, the
Operating Partnership and ACCA LLC, the “ACC Merger
Entities”) has been duly authorized, executed and delivered
by the ACC Merger Entities and, to the knowledge of any of the
Transaction Entities, by each of the GMH Entities, and constitutes
a valid and binding agreement of the ACC Merger Entities,
enforceable against the same in accordance with its terms, except
to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws
relating to creditors’ rights and general principles of
equity. The ACC Merger Entities have complied in all material
respects with the terms of the Merger Agreement required to be
complied with on or prior to the date hereof and compliance by the
ACC Merger Entities with their respective obligations thereunder
will not (whether with or without the giving of notice or passage
of time or both) conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute a default (or
give rise to any right of termination, acceleration, cancellation,
repurchase or redemption) or Repayment Event under, or result in
the creation or imposition of a Lien (other than those disclosed in
the Registration Statement, the General Disclosure Package and the
Prospectus) upon any property or assets of any of the ACC Merger
Entities, ACCHL or any other Subsidiary pursuant to, (i) any
statute, law, rule, ordinance, regulation, judgment, order or
decree of any court, domestic or foreign, regulatory body,
administrative agency, governmental body, arbitrator or other
authority, domestic or foreign, having jurisdiction over any of the
ACC Merger Entities, ACCHL or any other Subsidiary or any of their
properties or assets, (ii) any term, condition or provision of
any Agreements or Instruments, or (iii) the charter, by-laws,
certificate of formation, operating agreement or partnership
agreement or similar organizational documents, as applicable, of
any of the ACC Merger Entities, ACCHL or any other Subsidiary,
except, in the cases of clauses (i) and (ii), for such
conflicts, breaches, defaults, violations, rights, Repayment Events
or Liens that are disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus or as would not have,
or reasonably be expected to have, a Material Adverse Effect.
11
(w) There are no transfer taxes or
other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the
issuance by the Company or sale by the Company of the
Securities.
(x) The Company, beginning with its
taxable year ended December 31, 2004, has been organized and
operated, and as of the Closing Date and each Date of Delivery will
continue to be organized and operated, in conformity with the
requirements for qualification and taxation as a real estate
investment trust (a “REIT”) under the Internal Revenue
Code 1986, as amended (the “Code”), and the current and
proposed method of operation of the Company, as described in the
Registration Statement, the General Disclosure Package and the
Prospectus and as represented by the Transaction Entities, will
permit the Company to continue to meet the requirements for
qualification and taxation as a REIT under the Code for so long as
the Board of Directors of the Company deems it in the best
interests of the Company’s stockholders to remain so
qualified for taxation as a REIT under the Code.
(y) All federal, state, local and
foreign tax returns or valid extensions filed for, and reports
required to be filed by any of the Transaction Entities or the
Subsidiaries, in each case, to the extent material
(“Returns”), have been timely filed; all such Returns
are true, correct and complete in all material respects; and all
federal, state, county, local or foreign taxes, charges, fees,
levies, fines, penalties or other assessments, including all net
income, gross income, sales and use, ad valorem, transfer, gains,
profits, excise, franchise, real and personal property, gross
receipts, capital stock, disability, employment, pay-roll, license,
estimated, stamp, custom duties, severance or withholding taxes or
charges imposed by any Governmental Authority (as defined
hereafter) (including any interest and penalties (civil or
criminal) on or additions to any such taxes and any expenses
incurred in connection with the determination, settlement or
litigation of any tax liability), in each case, to the extent
material (“Taxes”), shown in such Returns or on
assessments received by any of the Transaction Entities or the
Subsidiaries or otherwise due and payable or claimed to be due and
payable by any Governmental Authority, have been paid, except for
any such tax, charge, fee, levy, fine, penalty or other assessment
that (i) is currently being contested in good faith,
(ii) would not have, or reasonably be expected to have, a
Material Adverse Effect or (iii) is described in the
Registration Statement, the General Disclosure Package and the
Prospectus. None of the Transaction Entities or the Subsidiaries
has requested any extension of time within which to file any
Return, which Return has not since been filed. None of the
Transaction Entities or the Subsidiaries has executed any
outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any Taxes
or Returns. No audits or other administrative proceedings or court
proceedings are presently pending nor threatened against any of the
Transaction Entities or the Subsidiaries with regard to any Taxes
or Returns of any of the Transaction Entities or the Subsidiaries,
and no taxing authority has notified any of the Transaction
Entities or the Subsidiaries in writing that it intends to
investigate its Tax affairs.
(i) Each of the Transaction Entities
and the Subsidiaries has complied in all material respects with the
provisions of the Code relating to the payment and
withholding
12
of Taxes,
including, without limitation, the withholding and reporting
requirements under Sections 1441 through 1446, 3401 through
3406, and 6041 and 6049 of the Code, as well as similar provisions
under any other laws, and have, within the time and in the manner
prescribed by law, withheld and paid over to the proper
governmental authorities all material amounts required in
connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party.
(z) None of the Transaction Entities
or the Subsidiaries (including any predecessor entities) has
distributed, or prior to the later of the Closing Date (or the
final Date of Delivery) and the completion of the distribution of
the Securities, will distribute, any offering material in
connection with the offering or sale of the Securities other than
the Registration Statement, the General Disclosure Package and the
Prospectus (including any supplement thereto) or any other
materials, if any, permitted by the 1933 Act (which were disclosed
to the Representatives and their counsel) (it being understood that
no representation is made with respect to any other materials
distributed by the Representatives).
(aa) Each of the Transaction Entities
and the Subsidiaries is in compliance, in all material respects,
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred
with respect to any “pension plan” (as defined in
ERISA) for which any of the Transaction Entities would have any
liability; none of the Transaction Entities or the Subsidiaries has
incurred or expects to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971
of the Code including the regulations and published interpretations
thereunder; and each “pension plan” for which any of
the Transaction Entities or the Subsidiaries would have any
liability and that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects, and nothing
has occurred, whether by action or by failure to act, which would
cause the loss of such qualification, except where the failure to
be so qualified would not have, or reasonably be expected to have,
a Material Adverse Effect.
(bb) To the knowledge of the
Transaction Entities, the assets of the Transaction Entities and
the Subsidiaries do not constitute “plan assets” of an
ERISA regulated employee benefit plan.
(cc) (1) The Transaction
Entities or the Subsidiaries or any joint ventures in which the
Transaction Entities or any Subsidiary owns an interest, as the
case may be, will have good and marketable fee simple title or
leasehold title to all of the properties and other assets owned or
leased by them described in the Registration Statement, the General
Disclosure Package and the Prospectus as owned by the Transaction
Entities or the Subsidiaries or the applicable joint venture (the
“Properties”), in each case, free and clear of all
Liens, except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus or such as would not
have, or reasonably be expected to have, a Material Adverse Effect;
(2) all Liens on or affecting the Properties that are required
to be disclosed in the Registration Statement, the General
Disclosure
13
Package and the
Prospectus are disclosed therein and none of the Transaction
Entities or the Subsidiaries is in default under any such Lien
except for such defaults that would not have, or reasonably be
expected to have, a Material Adverse Effect; (3) none of the
Transaction Entities is in violation of any municipal, state or
federal law, rule or regulation concerning the Properties or any
part thereof which violation would have, or reasonably be expected
to have, a Material Adverse Effect; (4) each of the Properties
complies with all applicable zoning laws, laws, ordinances,
regulations, development agreements, reciprocal easement
agreements, ground or airspace leases and deed restrictions or
other covenants, except where the failure to comply would not have,
or reasonably be expected to have, a Material Adverse Effect or
could not result in a forfeiture or reversion of title; and
(5) none of the Transaction Entities or the Subsidiaries has
received from any Governmental Authority any written notice of any
condemnation of or zoning change materially affecting the
Properties or any part thereof, and none of the Transaction
Entities or the Subsidiaries knows of any such condemnation or
zoning change which is threatened and which if consummated would
have, or reasonably be expected to have, a Material Adverse
Effect.
(dd) Each of the Transaction Entities
and the Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are generally deemed prudent and customary in the businesses in
which they are or will be engaged as described in the Registration
Statement, the General Disclosure Package and the Prospectus; all
policies of insurance and fidelity or surety bonds insuring any of
the Transaction Entities or the Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full
force and effect; each of the Transaction Entities and the
Subsidiaries is in compliance with the terms of such policies and
instruments in all material respects; except as described in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no material claims by any of the Transaction
Entities or the Subsidiaries under any such policy or instrument as
to which any insurance company is denying liability or defending
under a reservation of rights clause; and, except as disclosed in
the Registration Statement, the General Disclosure Package and the
Prospectus, none of the Transaction Entities or the Subsidiaries
has been refused any insurance coverage sought or applied for; and
none of the Transaction Entities or the Subsidiaries has any reason
to believe that any of them will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue to conduct its business as currently conducted or as
proposed to be conducted in the Registration Statement, the General
Disclosure Package or the Prospectus (exclusive of any supplement
thereto) at a cost that would not have a Material Adverse
Effect.
(ee) Except as set forth in the
Registration Statement, the General Disclosure Package and the
Prospectus, the mortgages and deeds of trust encumbering the
Properties, including, without limitation, the participating
properties, and real property (and improvements thereon) owned or
leased by any of the Transaction Entities or the Subsidiaries are
described in the Registration Statement, the General Disclosure
Package and the Prospectus and are not convertible and none of the
Transaction Entities, the Subsidiaries, or any person affiliated
therewith holds a participating interest therein, and
14
such mortgages
and deeds of trust are not cross-defaulted or cross-collateralized
to any property other than the Properties.
(ff) The Operating Partnership or a
Subsidiary has title insurance on the fee interests and/or
leasehold interests (in the case of a ground lease interest) in
each of the Properties covering such risks and in such amounts as
are commercially reasonable for the assets owned or leased by them
and that are consistent with the types and amounts of insurance
typically maintained by owners and operators of similar properties,
and in each case such title insurance is in full force and
effect.
(gg) Except as otherwise disclosed in
the Registration Statement, the General Disclosure Package and the
Prospectus, (i) the Transaction Entities and the Subsidiaries
and the Properties have been and are in material compliance with,
and none of the Transaction Entities or the Subsidiaries has any
material liability under, applicable Environmental Laws (as
hereinafter defined), (ii) none of the Transaction Entities,
the Subsidiaries, or, to the knowledge of the Transaction Entities,
the prior owners or occupants of the property at any time or any
other person or entity (including adjacent landowners or lessees)
has at any time released (as such term is defined in
Section 101(22) of Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.
§§ 9601-9675 (&ldqu
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