EXHIBIT 10.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of December 1, 2003,
is by and among RREEF America L.L.C., a Delaware limited liability company
("RREEF"), on behalf of itself and Scudder RREEF Real Estate Fund II, Inc., a
Maryland corporation (the "Purchaser"), and Mid-America Apartment Communities,
Inc. (the "Seller").
WHEREAS, RREEF, as the Purchaser's investment adviser, desires to cause the
Purchaser to purchase from Seller, and Seller desires to issue and sell to the
Purchaser, in the aggregate 400,000 shares of common stock of Seller, par value
$0.01 per share (the "Shares").
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, RREEF hereby
agrees to cause the Purchaser to purchase from Seller, and Seller agrees to
issue and sell to the Purchaser, the Shares at a price per share of $30.00
for an aggregate purchase price of $12,000,000 (the "Purchase Price").
2. Purchaser Representations and Warranties. RREEF, on behalf of the
Purchaser, represents and warrants that:
(a) Due Authorization. The Purchaser is duly authorized to purchase the
Shares. This Agreement has been duly authorized, executed and
delivered by the Purchaser, or by RREEF on behalf of such Purchaser,
and constitutes a legal, valid and binding agreement of such
Purchaser, or of RREEF 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. The Purchaser, or RREEF on
behalf of such Purchaser, has received a copy of Seller's Prospectus
dated September 9, 1998, and Prospectus Supplement dated December 1,
2003 (collectively, the "Prospectus").
(c) Investment Company. The Purchaser is a closed-end management
investment company registered pursuant to the Investment Company Act
of 1940, as amended.
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 6 of this Agreement).
(d) No Restrictions, Liens and Claims. When issued and delivered pursuant
to this Agreement, the Shares will be free and clear of any and all
restrictions on transfer, liens, security interests, claims,
encumbrances and assessments of every kind and nature whatsoever,
whether arising by agreement, operation of law or otherwise
(collectively, "Encumbrances") except to the extent such Encumbrances
are created by Purchaser or RREEF or are described in the Prospectus.
(e) Registration. The Shares have been duly registered with the Securities
and Exchange Commission pursuant to an effective registration
statement of which the Prospectus is a part.
(f) 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 RREEF. RREEF 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, as amended;
(b) it has been duly authorized to act as investment adviser on behalf of
the Purchaser; and (c) it has the power and authority to enter into this
Agreement on behalf of the 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
December 3, 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 Jefferies & Company, Inc., or any appropriate
affiliate thereof (with each party to pay a commission of $.01 per share to
Jefferies & 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.
10. Fees and Expenses. Each of the parties hereto shall pay its own fees and
expenses incident to the negotiation, preparation and execution of this
Agreement, including attorneys', accountants' and other advisors' fees.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
Seller
Mid-America Apartment Communities, Inc.
By:
/s/ Leslie Wolfgang
Leslie B.C. Wolfgang
Vice President and Corporate Secretary
RREEF America L.L.C., on behalf of itself and on behalf of
Scudder RREEF Real Estate Fund II, Inc.
By:
/s/ Mark Zeisloft
Mark D. Zeisloft
Managing Director