EXHIBIT 10.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of August 18, 2003, is
by and among Cohen & Steers Capital Management, Inc. ("Cohen & Steers"), the
client accounts of Cohen & Steers, as set forth on Schedule A (each a
"Purchaser" and collectively, the "Purchasers"), and Mid-America Apartment
Communities, Inc. (the "Seller").
WHEREAS, the Purchasers desire to purchase from Seller, and Seller desires
to issue and sell to the Purchasers, in the aggregate 700,000 shares of common
stock of Seller, par value $..01 per share (the "Shares") with the number of
shares to be acquired by each Purchaser set forth on Schedule A.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
Purchasers hereby agree to purchase from Seller, and Seller agrees to issue
and sell to the Purchasers, the Shares at a price per share of $28.40 for
an aggregate purchase price of $ 19,880,000 (the "Purchase Price").
2. Representations and Warranties of Purchaser. Each Purchaser represents and
warrants that:
(a) Due Authorization. Such Purchaser is duly authorized to purchase the
Shares. This Agreement has been duly authorized, executed and
delivered by such Purchaser and constitutes a legal, valid and binding
agreement of such Purchaser, or of Cohen & Steers on behalf of such
Purchaser, enforceable against such Purchaser in accordance with its
terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights or remedies of creditors or (ii) the effect
of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law and discretion of the court before
which any proceeding therefor may be brought.
(b) Prospectus and Prospectus Supplement. Such Purchaser has received a
copy of Seller's Prospectus dated September 9, 1998, and Prospectus
Supplement dated August 18, 2003 (collectively, the "Prospectus").
(c) Not a Party in Interest; Disqualified Person. With respect to Seller,
such Purchaser is not a "party in interest" as such phrase is used in
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" as such phrase is used in the
Internal Revenue Code of 1986, as amended ("Code").
(d) Not a Prohibited Transaction. The purchase of the Shares from Seller
will not give rise to a nonexempt "prohibited transaction" under ERISA
or the Code.
3. Representations and Warranties of Seller. Seller represents and warrants
that:
(a) Due Authorization. This Agreement has been duly authorized, executed
and delivered by Seller and constitutes a legal, valid and binding
agreement of Seller, enforceable against Seller in accordance with its
terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights or remedies of creditors or (ii) the effect
of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law and the discretion of the court
before which any proceeding therefor may be brought.
(b) Organization and Authority. Seller has been duly organized and is
validly existing in good standing under the laws of Tennessee, with
full power and authority to own or lease and occupy its properties and
conduct its business as described in the Prospectus.
(c) Issuance of the Shares. The Shares have been duly and validly
authorized and, when issued and delivered pursuant to this Agreement,
will be fully paid and nonassessable and will be listed, subject to
notice of issuance, on the New York Stock Exchange effective as of the
Closing (as defined in Paragraph 5 of this Agreement).
(d) Absence of Conflicts. The execution, delivery and performance of this
Agreement and the consummation of transactions contemplated herein do
not and will not result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Seller.
4. Representation and Warranty of Cohen & Steers. Cohen & Steers hereby
represents and warrants that (a) it is an investment adviser duly
registered with the Securities and Exchange Commission under the Investment
Advisers Act of 1940; (b) it has been duly authorized to act as investment
adviser on behalf of each Purchaser; and (c) it has the power and authority
to enter into this Agreement on behalf of each Purchaser.
5. Conditions to Obligations of the Parties. The obligations of the parties
hereto to consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction or waiver at or prior to the Closing Time of
the following conditions:
(a) each of the representations and warranties of the parties hereto shall
be true and correct in all respects; and
(b) at Closing (as defined below), the Purchaser shall have received the
favorable opinion of counsel to the Seller and a certificate of the
officers of the Seller, dated as of the Closing, in form and substance
reasonably satisfactory to the Purchaser.
6. Closing. The transactions contemplated hereby shall be consummated on
August 22, 2003 (such time and date of payment and delivery being herein
called the "Closing") on a delivery versus payment basis in accordance with
the "DTC ID System" through Jeffries & Company, Inc., or any appropriate
affiliate thereof (with each party to pay a commission of $.01 per share to
Jeffries & Company, Inc.).
7. Governing Law. This Agreement shall be construed in accordance with and
governed by the substantive laws of the State of New York.
8. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject mater hereof and may be
amended only in a writing that is executed by each of the parties hereto.
9. Counterparts. This Agreement may be executed in separate counterparts, each
of which shall be deemed an original, and all of which together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
MID-AMERICA APARTMENT COMMUNITIES, INC.
By:
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Simon R.C. Wadsworth
Executive Vice President and CFO
COHEN & STEERS CAPITAL MANAGEMENT, INC., on behalf of itself and
on behalf of the Purchasers specified on Schedule A
By:
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Name: Greg E. Brooks
Title: Senior Vice President