American Campus Communities,
Inc.
8,500,000 Shares of Common
Stock
(Par Value $0.01 Per
Share)
Merrill Lynch
& Co.
Merrill Lynch, Pierce, Fenner & Smith
KeyBanc Capital
Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
as Representatives of the several Underwriters
Merrill Lynch,
Pierce, Fenner & Smith
One Bryant
Park
New York, New York 10036
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,
8,500,000 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 “Firm
Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to 1,275,000 additional
shares of Common Stock to cover any overallotments (the
“Option Securities;” the Option Securities, together
with the Firm 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”) an “automatic shelf registration
statement,” as defined under Rule 405
(“Rule 405”) of the rules and regulations (the
“1933 Act Regulations”) of the Commission promulgated
under the Securities Act of 1933, as amended (the “1933
Act”), on Form S-3 (No. 333-157979), including the
related base prospectus, covering the registration of debt
securities, shares of Common Stock, shares of preferred stock and
warrants under the Securities Act, and the offer and sale thereof
from time to time in accordance with Rule 415 of the 1933 Act
Regulations. Such registration statement, and any post-effective
amendment thereto, became effective upon filing with the Commission
in accordance with Rule 462(e) of the 1933 Act Regulations
(“Rule
462(e)”).
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
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 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 herein as “Rule 430B
Information.” Each base prospectus and prospectus supplement
used in connection with the offering of the Securities that omitted
Rule 430B Information is referred to herein collectively as a
“preliminary prospectus.” Such registration statement,
at any given time, including any amendments thereto to such time,
the exhibits and any schedules thereto at such time, the documents
incorporated or deemed 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 the 1933 Act Regulations, is herein referred to as the
“Registration Statement”; provided ,
however , that “Registration Statement” without
reference to a time means the Registration Statement as of the time
of the first contract of sale for the Securities, which time shall
be considered the “new effective date” of the
Registration Statement with respect to the Underwriters and the
Securities (within the meaning of Rule 430B(f)(2)). The final
base 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 or deemed incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act prior to
the time of the execution of this Agreement, are referred to herein
collectively as 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”) or
its Interactive Data Electronic Applications system
(“IDEA”).
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 or is
deemed to be 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, prior to the
execution of this Agreement; 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, at or after the execution of this
Agreement.
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
2
Company
(“ACCHL”), the “Transaction Entities”),
jointly and severally represents and warrants to, and agrees with,
each Underwriter as of the date hereof, as of the Applicable Time
(as defined below), as of the Closing Date (as defined in
Section 3 hereof), and as of each Date of Delivery (as defined
in Section 3 hereof), as follows:
The Company meets
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement was filed by the Company with the Commission
not earlier than three years prior to the date hereof. The
Registration Statement became effective under the 1933 Act upon
filing with the Commission. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, and the Securities have been and remain eligible for
registration by the Company on an automatic shelf registration
statement. 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, and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) of
the 1993 Act Regulations has been received by the Company. No order
preventing or suspending the use of any preliminary prospectus or
the Prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened
or contemplated by the Commission or the securities authority of
any jurisdiction. Any request on the part of the Commission for
additional information has been complied with.
At the respective
times the Registration Statement and any post-effective amendments
thereto became effective, at each deemed effective date with
respect to the Underwriters and the Securities pursuant to
Rule 430B(f)(2), at the Closing Date and at each Date of
Delivery, if any, 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 or
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 the offering of Securities was and will, at the
time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR/IDEA, except to the extent permitted by
Regulation S-T.
3
As of the
Applicable Time, each Issuer Free Writing Prospectus (as defined
below) identified on Schedule II , 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 an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
The
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 the General Disclosure Package, or any amendments or
supplements thereto, 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 the General Disclosure Package, or any
amendments or supplements thereto, as the case may be.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 7:30 a.m. (Eastern time) on May 6, 2009 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 with the Commission 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 base prospectus that is
included in the Registration Statement and the preliminary
prospectus supplement relating to the Securities immediately prior
to that time, including the documents incorporated or deemed
incorporated by reference therein at such time.
(a) 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”),
as applicable, and, when read together with the other information
in the Registration Statement, the General Disclosure Package or
the Prospectus, as the case may be, (a) at the time the
Registration Statement became effective, (b) at the earlier of
the time the Prospectus was first used
4
and the date
and time of the first contract of sale of the Securities,
(c) at the Closing Date and (d) at each 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.
(b) (A) At
the original effectiveness of the Registration Statement,
(B) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 1933 Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) of the 1933 Act Regulations) made
any offer relating to the Securities in reliance on the exemption
of Rule 163 of the 1933 Act Regulations, and (D) as of
the execution of this Agreement, the Company was and is a
“well-known seasoned issuer,” as defined in
Rule 405.
(c) (i) At
the original effectiveness of the Registration Statement,
(ii) at the earliest time after the original effectiveness of
the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the 1933 Act Regulations) of the Securities and
(iii) as of the execution of this Agreement (with such time of
execution being used as the determination date for purposes of this
clause (iii)), the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, without taking account
of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an
ineligible issuer.
(d) 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 Underwriters as described in Section 5(c) hereof, 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 or deemed
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 information furnished to the Company in
writing by the Representatives on behalf of the Underwriters
expressly for use therein.
(e) 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
5
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) hereof), taken as a whole, whether or not
arising from transactions in the ordinary course of business
(“Material Adverse Effect”).
(f) 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
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 Firm 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 Firm Securities and, if applicable, Option
Securities issued.
(g) 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
6
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.
(h) The
Company’s authorized equity capitalization is as set forth in
the documents incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus; the
capital stock of the Company conforms in all material respects to
the description thereof contained in the Registration Statement,
the General Disclosure Package and 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.
(i) 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
or other similar 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
7
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.
(j) 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 Registration Statement, the General
Disclosure Package and 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 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 OP Units, PIUs or other securities of
the Operating Partnership.
(k) 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 Operating Partnership have been duly
authorized for issuance by the Operating Partnership to the
Company, and at the Closing Date for the Firm 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.
(l) 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.
(m) 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 and 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 Agreement and Plan of Merger,
dated as of February 11, 2008, by and among GMH Communities
Trust, GMH Communities, Inc., GMH Communities, LP, the Company, the
Operating Partnership, American Campus Acquisition LLC and American
Campus Acquisition Limited Partnership LP (the “GMH Agreement
and Plan of Merger”), 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.
(n) 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
8
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.
(o) 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 Securities by the
Underwriters in the manner contemplated herein and in the General
Disclosure Package and the Prospectus, and (iii) the absence
of which would not have, or reasonably be expected to have, a
Material Adverse Effect.
(p) 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,
9
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.
(q) 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.
(r) 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.
(s) The
consolidated financial statements of the Company and its
subsidiaries included or incorporated or deemed 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 U.S.
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 or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus 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 or deemed 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.
10
The selected
financial data and the summary financial information included or
incorporated or deemed 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 or deemed 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 required by the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
to be included or incorporated or deemed 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.
(t) 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 or deemed 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, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations.
(u) 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.
(v) 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, if any, 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.
(w) 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,
11
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 within the extended
time. 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.
(x) 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 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 has, 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.
(y) 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 and any other written materials
consented to by the Representatives pursuant to Section 5(g)
hereof) (it being understood that no representation is made with
respect to any other materials distributed by the
Representatives).
(z) 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
12
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.
(aa) 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.
(bb) (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 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.
(cc) 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
13
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 and the Prospectus at a cost that would not have
a Material Adverse Effect.
(dd) 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 such
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property other than the
Properties.
(ee) 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.
(ff) 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 the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. §§ 9601-9675 (“CERCLA”)) or otherwise
disposed of or dealt with, Hazardous Materials (as hereinafter
defined) on, to or from the Properties or other assets owned by the
Transaction Entities or the Subsidiaries, except for such releases
or dispositions as would not be reasonably likely to cause the
Transaction Entities or the Subsidiaries to incur material
liability and that would not require disclosure pursuant to
Environmental Laws, (iii) the Transaction Entities do not
intend to use the Properties or other assets owned by any of the
Transaction Entities or the
14
Subsidiaries or
any subsequently acquired properties, other than in material
compliance with applicable Environmental Laws, (iv) none of
the Transaction Entities or the Subsidiaries knows of any seepage,
leak, discharge, release, emission, spill, or dumping of Hazardous
Materials into waters (including, but not limited to, groundwater
and surface water) on, beneath or adjacent to the Properties, or
onto lands or other assets owned by the Transaction Entities or the
Subsidiaries from which Hazardous Materials might seep, flow or
drain into such waters except for such as would not be reasonably
likely to cause the Transaction Entities or the Subsidiaries to
incur material liability, (v) none of the Transaction Entities
or the Subsidiaries has received any notice of, or has any
knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or
pursuant to any Environmental Law or common law by any governmental
or quasi-governmental body or any third party with respect to the
Properties or the assets described in the Registration Statement,
the General Disclosure Package and the Prospectus or arising out of
the conduct of the Transaction Entities or the Subsidiaries, except
for such claims that would not be reasonably likely to cause the
Transaction Entities to incur material liability and that would not
require disclosure pursuant to Environmental Laws and
(vi) neither the Properties nor any other land or other assets
currently owned by any of the Transaction Entities or the
Subsidiaries is included or, to the best of the Transaction
Entities’ and the Subsidiaries’ knowledge, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA
by the United States Environmental Protection Agency (the
“EPA”) or, to the best of the Transaction
Entities’ and the Subsidiaries’ knowledge, proposed for
inclusion on any similar list or inventory issued pursuant to any
other applicable Environmental Law or issued by any other
Governmental Authority. To the knowledge of the Transaction
Entities and the Subsidiaries, there have been no and are no (i)
aboveground or underground storage tanks, (ii) polychlorinated
biphenyls (“PCBs”) or PCB-containing equipment,
(iii) asbestos or asbestos containing materials,
(iv) lead based paints, (v) dry-cleaning
faciliti
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