1
POST APARTMENT HOMES, L.P.
(a Georgia limited partnership)
Debt Securities
PURCHASE AGREEMENT
December 15, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, 10th Floor
World Financial Center
250 Vesey Street
New York, New York 10281-1310
Ladies and Gentlemen:
Post Apartment Homes, L.P., a Georgia limited partnership (the
"Operating Partnership"), proposes to issue and sell up to $319,000,000
aggregate initial public offering price of its unsecured non-convertible debt
securities (the "Securities") in principal amounts, at prices and on terms to be
determined at the time of offering. The Securities will be issued in one or more
series under one or more indentures (each, an "Indenture"), between the
Operating Partnership and a trustee (a "Trustee"). Each series of Securities may
vary, as applicable, as to title, aggregate principal amount, rank, interest
rate or formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, sinking fund requirements and any other variable
terms established by or pursuant to the applicable Indenture. Unless the context
otherwise requires, as used herein, "you" and "your" shall mean the parties to
whom this Agreement is addressed together with the other parties, if any,
identified in the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Operating Partnership determines to make an
offering of Securities through you, or through an underwriting syndicate managed
by you, the Operating Partnership will enter into an agreement (each a "Terms
Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, you and such other
underwriters, if any, selected by you (the "Underwriters," which term shall
include you, whether acting as sole Underwriter or as a member of
2
an underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Underwritten
Securities shall specify the aggregate principal amount of Underwritten
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 10 hereof) and the name of any Underwriter other than you
acting as co-manager in connection with such offering, the aggregate principal
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, whether such offering is on a fixed or variable price basis
and, if on a fixed price basis, the initial offering price, the price at which
the Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment and any other material
variable terms of the Initial Underwritten Securities (including, but not
limited to, current ratings, designations, denominations, interest rates or
formulas, interest payment dates, maturity dates and repayment provisions). In
addition, if applicable, such Terms Agreement shall specify whether the
Operating Partnership has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over- allotments, if any, and the
aggregate principal amount of Underwritten Securities subject to such option
(the "Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Operating Partnership. Each offering of Underwritten Securities through you as
sole Underwriter or through an underwriting syndicate managed by you will be
governed by this Agreement, as supplemented by the applicable Terms Agreement,
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Underwritten Securities.
Post Properties, Inc., a Georgia corporation (the "Company"),
and the Operating Partnership have filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3 (Nos.
333-36595 and 333-42884) for the registration of, among other securities, the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 430A or Rule 415
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Each such registration statement (as amended by
post-effective amendment No. 1 thereto) has been declared effective by the
Commission and an Indenture has been qualified
-2-
3
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement and the prospectus constituting a part thereof (including
in each case the information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations, and each prospectus supplement relating to
the offering of Underwritten Securities pursuant to Rule 430A or Rule 415 of the
1933 Act Regulations (the "Prospectus Supplement"), including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or otherwise), are collectively referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, that if
any revised Prospectus shall be provided to you by the Operating Partnership for
use in connection with the offering of Underwritten Securities which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became effective (whether or not such revised prospectus is required
to be filed by the Company or the Operating Partnership pursuant to Rule 424(b)
of the 1933 Act Regulations), the term "Prospectus" shall refer to each such
revised prospectus from and after the time it is first provided to you for such
use; provided, further, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Underwritten
Securities to which it relates. Any registration statement (including any
supplement thereto or information which is deemed part thereof) filed by the
Operating Partnership under Rule 462(b) of the 1933 Act Regulations (a "Rule
462(b) Registration Statement") shall be deemed to be part of the Registration
Statement. Any prospectus (including any amendment or supplement thereto or
information which is deemed part thereof) included in the Rule 462(b)
Registration Statement and any term sheet as contemplated by Rule 434 of the
1933 Act Regulations (a "Term Sheet") shall be deemed to be part of the
Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or any
amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission
-3-
4
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
The term "Subsidiary" as used herein means a corporation or a
partnership a majority of the outstanding equity interests, as the case may be,
of which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other Subsidiaries
of the Company or the Operating Partnership.
SECTION 1. Representations and Warranties of the Operating
Partnership.
(a) The Operating Partnership represents and warrants to you,
as of the date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof, as of the Closing Time (as
defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, a "Representation Date"), as follows:
(1) The Operating Partnership meets the requirements
for use of Form S-3 under the 1933 Act. Each of the
Registration Statement, the Prospectus and 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 proceeding for that purpose has been
instituted or is pending or, to the knowledge of the Operating
Partnership, is contemplated or threatened 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. In addition, the Indenture
has been duly qualified under the 1939 Act. 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 the Operating Partnership, threatened
by the Commission or by the state securities authority of any
jurisdiction.
(2) The Registration Statement, at the time
post-effective amendment No. 1 thereto became effective,
complied, and the Registration Statement and the Prospectus,
at each Representation Date will comply, in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act
Regulations"). The Registration Statement, at the
-4-
5
time post-effective amendment No. 1 thereto became effective,
did not, and as of each Representation Date 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. At the date of the
Prospectus, at the Closing Time and at each Representation
Date, the Prospectus and any amendments and supplements
thereto (unless the term "Prospectus" refers to a prospectus
which has been provided to you by the Operating Partnership
for use in connection with an offering of Underwritten
Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement became
effective, in which case at the time it is first provided to
you for such use) did not and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
If the Operating Partnership elects to rely upon Rule 434 of
the 1933 Act Regulations, the Operating Partnership will
comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Operating Partnership in writing by any Underwriter through
you expressly for use in the Registration Statement or the
Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification on Form T-1 under the 1939 Act (the "Statement
of Eligibility") of the Trustee under the Indenture. If a Rule
462(b) Registration Statement is required in connection with
the offering and sale of the Underwritten Securities, the
Operating Partnership has complied or will comply with the
requirements of Rule 111 of the 1933 Act Regulations relating
to the payment of filing fees therefor.
(3) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement at the time post-effective
amendment No. 1 to the Registration Statement became effective
or as part of any amendment thereto, or filed pursuant to Rule
424 under the 1933 Act, complied, when so filed, in all
material respects with the 1933 Act Regulations and, if
applicable, each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the
offering of Underwritten Securities will, at the
-5-
6
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.
(4) The documents incorporated or deemed to be
incorporated by reference in 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") and, when read
together with the other information in the Prospectus, at the
time post-effective amendment No. 1 to the Registration
Statement became effective and as of each Representation Date
or during the period specified in Section 3(f), did not and
will not include 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, in light of the
circumstances under which they were made, not misleading.
(5) The accounting firm that certified the financial
statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and
the Prospectus, is an independent public accountant as
required by the 1933 Act and the 1933 Act Regulations.
(6) The consolidated financial statements of the
Company and the Operating Partnership incorporated by
reference into the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other
entity included therein, present fairly the financial position
of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case
may be, at the respective dates indicated and the statement of
operations, stockholders' equity, partners' equity, and cash
flows of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case
may be, for the periods specified. Such financial statements
have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if
any, included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the
information required to be stated therein. The selected
financial data and the summary financial information included
in, or incorporated by reference into, the
-6-
7
Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the
audited financial statements included in, or incorporated by
reference into, the Registration Statement and the Prospectus.
The Company's and the Operating Partnership's ratios of
earnings to fixed charges and to fixed charges and preferred
stock dividends (actual and, if any, pro forma) included in
the Prospectus under the captions "Ratios of Earnings to Fixed
Charges and to Fixed Charges and Preferred Stock Dividends"
and in Exhibit 12.1 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of
the Commission. In addition, any pro forma financial
statements included in, or incorporated by reference into, the
Registration Statement and the Prospectus comply in all
material respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission, and the assumptions
used in the preparation thereof are, in the opinion of the
Operating Partnership, reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein and have been properly
applied to the historical amounts in the compilation of such
statements. Other than the historical financial statements
(and schedules) included therein, no other historical or pro
forma financial statements (or schedules) are required by the
1933 Act or the 1933 Act Regulations to be included in the
Registration Statement.
(7) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or
business prospects of the Operating Partnership and its
Subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of
business; (B) no casualty loss or condemnation or other
adverse event with respect to any of the interests held
directly or indirectly in any of the real properties owned,
directly or indirectly, by the Operating Partnership or its
Subsidiaries (the "Properties") has occurred that is material
to the Operating Partnership and its Subsidiaries considered
as one enterprise; (C) there have been no transactions entered
into by the Operating Partnership or any Subsidiary, other
than those arising in the ordinary course of business, which
are material with respect to the Operating Partnership and its
Subsidiaries considered as one enterprise or that would
result, upon consummation, in any material inaccuracy
-7-
8
in the representations contained in Section 1(a)(6) above; (D)
neither the Operating Partnership nor any Subsidiary has
incurred any material obligation or liability, direct,
contingent or otherwise other than in the ordinary course of
business; and (E) there has been no material change in the
short-term debt or long-term debt of the Operating
Partnership.
(8) The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good
standing under the Georgia Revised Uniform Limited Partnership
Act (the "Georgia Act") with partnership power and authority
to own, lease and operate its properties, to conduct the
business in which it is engaged and to enter into and perform
its obligations under this Agreement, the Terms Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in
which such qualification or registration is required, whether
by reason of the ownership, leasing or management of property
or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
(9) Each of the Significant Subsidiaries has been
duly formed and is validly existing and in good standing under
the laws of its jurisdiction of organization with partnership
or corporate power and authority to conduct the business in
which it is engaged and to own, lease and operate its
properties as described in the Prospectus and to enter into
and perform its obligations under any agreements to which it
is a party. Each of the Significant Subsidiaries is duly
qualified as a foreign partnership, corporation or other
organization to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property, the
management of properties by others or the conduct of business,
except where the failure to so qualify would not have a
Material Adverse Effect.
(10) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be,
of each Significant Subsidiary have been validly issued and
fully paid and are owned by the Operating Partnership, the
Company, another Significant Subsidiary, and/or certain
affiliated entities as described in the Registration
Statement, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance,
-8-
9
claim or equity, other than the transfer restrictions set
forth in the Option and Transfer Agreement by and among the
Operating Partnership, Post Services, Inc., John A. Williams
and John T. Glover.
(11) The Operating Partnership has full power and
authority to enter into and perform its obligations under this
Agreement and the applicable Terms Agreement and this
Agreement has been, and as of each Representation Date, the
applicable Terms Agreement will have been, duly authorized,
executed and delivered by the Operating Partnership and,
assuming due authorization, execution and delivery by the
other parties thereto, each is a valid and binding agreement
of the Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability, and (C) rights to indemnity and
contribution thereunder may be limited by state or federal
securities laws or the public policy underlying such laws.
(12) The Indenture (A) has been duly and validly
authorized, and when executed and delivered by the Operating
Partnership, and assuming due authorization, execution and
delivery by the trustee, will constitute a valid and binding
obligation of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar
laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity and except the effect on enforceability of (a)
requirements that a claim with respect to any Underwritten
Securities payable other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (b) federal
or state law limiting, delaying or prohibiting the making of
payments outside the United States); and (B) conforms in all
material respects to the description thereof in the
Prospectus.
-9-
10
(13) The Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly
authorized by the Operating Partnership for offer, sale,
issuance and delivery pursuant to this Agreement and such
Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable
Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute
valid and legally binding obligations of the Operating
Partnership, entitled to the benefits of the Indenture
enforceable against the Operating Partnership in accordance
with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity and except the effect on enforceability of (a)
requirements that a claim with respect to any Underwritten
Securities payable other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (b) federal
or state law limiting, delaying or prohibiting the making of
payments outside the United States). Such Underwritten
Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture. Upon payment of the purchase price and
delivery of such Underwritten Securities in accordance
herewith, each of the Underwriters will receive good, valid
and marketable title to such Underwritten Securities, free and
clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of such
applicable Underwritten Securities conform in all material
respects to all statements and descriptions related thereto
contained in the Prospectus. Such Underwritten Securities rank
and will rank on a parity with all unsecured and
unsubordinated indebtedness of the Operating Partnership that
is outstanding on the Delivery Date or that may be incurred
thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured
mortgage lender to any specific Property which secures such
lender's mortgage.
(14) Neither the Operating Partnership nor any of its
Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, partnership agreement or
LLC agreement, as the case may be, or in default in the
performance or observance of
-10-
11
any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument
to which it or any of them is a party or by which any of them
may be bound, or to which any of their property or assets is
subject, except for such defaults that could not result in a
Material Adverse Effect. The execution, delivery and
performance of this Agreement or the applicable Terms
Agreement or each applicable Indenture and the transactions
contemplated herein or therein, including the issuance, sale
and delivery of the Underwritten Securities and the use of the
proceeds from the sale of the Underwritten Securities as
described in the Prospectus under the caption "Use of
Proceeds," and compliance by the Operating Partnership with
its obligations hereunder and thereunder, (A) do not and will
not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the
Operating Partnership or any of its Subsidiaries pursuant to,
any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Operating Partnership or any of its
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of their properties or assets is
subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or
partnership agreement of the Operating Partnership or any
Subsidiary, as the case may be, or (ii) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of
any government, government agency or court, domestic or
foreign, having jurisdiction over the Operating Partnership or
any Subsidiary or any of their assets, properties or
operations, except any violation that could not result in a
Material Adverse Effect. As used herein, a "Repayment Event"
means any event or condition which 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 the Operating Partnership or any
Subsidiary.
(15) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists
or, to the knowledge of the Operating Partnership, is
imminent, which may result in a Material Adverse Effect.
-11-
12
(16) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Operating
Partnership threatened against or affecting the Operating
Partnership, any Subsidiary thereof, any Property or any
officer or director of the foregoing, which is required to be
disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which could reasonably be
expected to result in a Material Adverse Effect, or which
might materially and adversely affect the consummation of this
Agreement, the applicable Terms Agreement or any applicable
Indenture or the transactions contemplated herein or therein
or the performance by the Operating Partnership of its
obligations under this Agreement, the applicable Indenture or
the Underwritten Securities. There is no pending legal or
governmental proceedings to which the Operating Partnership or
any Subsidiary is a party or of which any of their respective
assets or properties is subject which might result in a
Material Adverse Effect.
(17) There are no contracts or documents of the
Company or the Operating Partnership which are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed
as required.
(18) No authorization, approval or consent of any
court or governmental authority or agency is necessary or
required for the performance by the Operating Partnership of
its obligations under this Agreement, the applicable Terms
Agreement or any applicable Indenture or in connection with
the transactions contemplated under this Agreement, such Terms
Agreement or any applicable Indenture, except such as have
been already obtained or as may be required under the 1933
Act, the 1939 Act, the 1933 Act Regulations or state
securities or real estate syndication laws or the rules of the
National Association of Securities Dealers, Inc. ("NASD").
(19) The Operating Partnership and its Subsidiaries
own or possess, trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by
them, and neither the Operating Partnership nor any of its
Subsidiaries has received any
-12-
13
notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate
to protect the interest of the Operating Partnership or any of
its Subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(20) Each of the Operating Partnership and its
Subsidiaries has all permits, licenses, approvals, consents,
certificates and other authorizations of and from
(collectively, "Governmental Licenses") and has made all
declarations and filings with all appropriate federal, state,
local, foreign and other governmental authorities, all self
regulatory organizations and all courts and other tribunals
required for it to own, lease, license and use its properties
and assets and to conduct its business in the manner described
in the Registration Statement and the Prospectus, other than
such Governmental Licenses the absence of which, singly or in
the aggregate, could be reasonably expected to result in a
Material Adverse Effect. Neither the Operating Partnership nor
any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
could be reasonably expected to result in a Material Adverse
Effect.
(21) (A) Except as otherwise set forth in the
Registration Statement or Prospectus, the Operating
Partnership and its Subsidiaries directly or indirectly hold
good and marketable title to the real property and
improvements comprising the Properties (which title is, as
applicable, in the form of fee simple title to land, air
rights or condominium units, or leasehold title to land, air
rights or condominium units) and also holds good title to all
other assets that are required for the effective operation of
such Properties in the manner in which they currently are
operated, subject, however, to mortgages on such Properties,
to leases of certain equipment and other personal property, to
utility easements serving such Properties, to liens of ad
valorem taxes not due and payable as of the Closing Time, to
zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of
such Properties, to matters of title not adversely affecting
marketability of title to such Properties,
-13-
14
other statutory liens not due and payable as of the Closing
Time, title matters that may be material in character, amount
or extent but which do not materially detract from the value,
or interfere with the use of, the Properties or otherwise
materially impair the business operations being conducted or
proposed to be conducted thereon, ownership of cable
television and other telecommunication lines and facilities
serving one or more of such Properties by the cable television
and other telecommunication providers or their affiliates,
service marks and trade names used in connection with such
Properties, and ownership by others of certain items of
equipment and other items of personal property that are not
material to the conduct of business operations at such
Properties; (B) the ground lease under which the Operating
Partnership leases the land or air rights on which any
Property is located is in full force and effect, and the
Operating Partnership is not in default in respect of any of
the terms or provisions of any such lease and the Operating
Partnership has not received notice of the assertion of any
claim by anyone adverse to the Operating Partnership's rights
as lessee under any such lease, or affecting or questioning
the Operating Partnership's right to the continued possession
or use of the Property under any such lease or of a default
under any such lease, other than claims which would not have a
Material Adverse Effect; (C) all liens, charges, encumbrances,
claims, or restrictions on or affecting any of the Properties
and the assets of the Operating Partnership or any Subsidiary
which are required to be disclosed in the Prospectus are
disclosed therein; (D) none of the Operating Partnership or
any tenant of any of the Properties is in default under any of
the leases pursuant to which the Operating Partnership, as
lessor, leases its Property (and the Operating Partnership
does not know of any event which, but for the passage of time
or the giving of notice, or both, would constitute a default
under any of such leases) other than such defaults that would
not have a Material Adverse Effect; (E) except as otherwise
set forth in the Registration Statement or Prospectus, to the
extent entered into in the ordinary course of business or to
the extent not material to the Operating Partnership, no
person has an option or right of first refusal to purchase all
or part of any Property or any interest therein; (F) each of
the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to access
to the Properties), except to the extent disclosed in the
Prospectus and except for such failures to comply that would
not individually or in
-14-
15
the aggregate have a Material Adverse Effect; (G) the
Operating Partnership does not have knowledge of any pending
or threatened condemnation proceedings, zoning change, or
other similar proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on
or access to the Properties, except such proceedings or
actions that would not have a Material Adverse Effect; and (H)
other than with respect to the Property known as "Post Woods,"
and in the case of certain properties acquired in the merger
with Columbus Realty Trust, the Operating Partnership and its
Subsidiaries are the beneficiaries of title insurance on the
Properties in amounts that were commercially reasonable at the
time such policies were issued, and in each case such title
insurance is in full force and effect, except to the extent
the failure to obtain such title insurance or to keep such
title insurance in force would not have a Material Adverse
Effect.
(22) The Operating Partnership is not, and upon the
issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act"), or is or will become a
"holding company" or a "subsidiary company" of a "registered
holding company," as defined in the Public Utility Holding
Company Act of 1935, as amended.
(23) Except as disclosed in the Prospectus, (A) each
Property, including, without limitation, the Environment (as
defined below) associated with each Property, is free of any
Hazardous Substance (as defined below) in violation of any
Environmental Law (as defined below) applicable to the
Properties, except for any Hazardous Substance that would not
have any Material Adverse Effect; (B) neither the Operating
Partnership nor any Subsidiary has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in
violation of any Environmental Law applicable to such
Property, and no condition exists on, in or under any Property
or, to the knowledge of the Operating Partnership, any
property adjacent to any Property that could result in the
occurrence of liabilities under, or any violations of, any
Environmental Law applicable to such Property, give rise to
the imposition of any Lien (as defined below) under any
Environmental Law, or cause or constitute a health, safety or
-15-
16
environmental hazard to any property, person or entity, except
any violation which would not be reasonably likely to result
in a Material Adverse Effect; (C) neither the Operating
Partnership nor any Subsidiary is engaged in or intends to
engage in any manufacturing or any similar operations at any
Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance
(other than paints, stains, cleaning solvents, insecticides,
herbicides, or other substances that are used in the ordinary
course of operating any Property and in compliance with all
applicable Environmental Laws) or (2) require permits or are
otherwise regulated pursuant to any Environmental Law; (D)
except as otherwise set forth in the Registration Statement or
Prospectus, neither the Operating Partnership nor any
Subsidiary has received any notice of a claim under or
pursuant to any Environmental Law applicable to a Property or
under common law pertaining to Hazardous Substances on any
Property or pertaining to other property at which Hazardous
Substances generated at any Property have come to be located
which could be reasonably likely to result in a Material
Adverse Effect; (E) except as otherwise set forth in the
Registration Statement or Prospectus, neither the Operating
Partnership nor any Subsidiary has received any notice from
any Governmental Authority (as defined below) claiming any
violation of any Environmental Law that is uncured or
unremediated as of the date hereof which could reasonably be
likely to result in a Material Adverse Effect; and (F) except
as otherwise set forth in the Registration Statement or
Prospectus, no Property (1) is included or, to the knowledge
of the Operating Partnership or any Subsidiary, proposed for
inclusion on the National Priorities List issued pursuant to
CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability
Information System database maintained by the EPA as a
potential CERCLA removal, remedial or response site or (2) is
included or proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Operating
Partnership, or any subsidiary received any written notice
from the EPA or any other Governmental Authority proposing the
inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
-16-
17
toxic or dangerous substance, pollutant, solid waste or
similarly designated materials, including, without limitation,
oil, petroleum, or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant
or waste, including any such substance, pollutant or waste
identified, listed or regulated under any Environmental Law
(including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 3202, as
the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land
surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42
U.S.C. ss. 9601, et seq.) ("CERCLA"), the Resource
Conservation Recovery Act, as amended (42 U.S.C. ss. 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
ss. 2601 et seq.), the Occupational Safety and Health Act of
1970, as amended (29 U.S.C. ss. 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. ss. 1801,
et seq.), together with all rules, regulations and orders
promulgated thereunder and all other federal, state and local
laws, ordinances, rules, regulations and orders relating to
the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any
federal, state or local governmental office, agency or
authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any material mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous
-17-
18
Substance or any release, emission, discharge or similar term,
as those terms are defined or used in any Environmental Law.
(24) Each of the Operating Partnership and its
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in
which they are engaged.
(25) The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income
Security Act of 1974, as amended.
(26) Except as otherwise set forth in the
Registration Statement or Prospectus, the mortgages and deeds
of trust encumbering the properties and assets are not
convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the
Operating Partnership or any of its Subsidiaries; except as
otherwise disclosed in the Registration Statement or
Prospectus, none of the Operating Partnership or any of its
Subsidiaries holds participating interests in such mortgages
and deeds of trust.
(27) The partnership agreement of the Operating
Partnership (the "Operating Partnership Agreement") has been
duly authorized, executed and delivered by the parties thereto
and constitutes the valid agreement thereof, enforceable in
accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability; and the execution, delivery and
performance of the Operating Partnership Agreement did not, at
the time of execution and delivery, and does not constitute a
breach of, or default under any material contract, lease or
other instrument to which the Operating Partnership is a party
or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(28) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for each of the taxable years beginning
with the year ended December 31, 1993, and its current
organization and method of
-18-
19
operation should enable it to continue to meet the
requirements for qualification and taxation as a REIT.
(29) The Operating Partnership and each of the
Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnerships that
have terminated, through the date of termination of such
Subsidiary Partnerships.
(30) Each of the Company, the Operating Partnership
and its Subsidiaries has filed all federal, state, local and
foreign income tax returns which have been required to be
filed (except in any case in which the failure to file would
not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good
faith.
(31) The Underwritten Securities, upon issuance, will
be excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, as amended, and the rules and
regulations of the Commodity Futures Trading Commission under
such Act, as amended.
(b) Any certificate signed by any officer of the Operating
Partnership (or any officer of the Company, Post GP Holdings, Inc., a Georgia
corporation and sole general partner of the Operating Partnership ("Post GP")),
or of any Subsidiary, and delivered to you or to counsel for the Underwriters in
connection with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Operating Partnership to each Underwriter as
to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and
-19-
20
warranties herein contained and shall be subject to the terms and conditions set
forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Operating Partnership may grant, if so provided in the applicable
Terms Agreement relating to the Initial Underwritten Securities, an option to
the Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the aggregate principal amount, as the case may be, of the Option
Underwritten Securities set forth therein at a price per Option Underwritten
Security equal to the price per Initial Underwritten Security, less an amount
equal to any distributions declared by the Operating Partnership and paid or
payable on the Initial Underwritten Securities but not payable on the Option
Underwritten Securities. Such option, if granted, will expire 30 days or such
lesser number of days as may be specified in the applicable Terms Agreement
after the Representation Date relating to the Initial Underwritten Securities,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Underwritten Securities upon notice by you to
the Operating Partnership, as the case may be, setting forth the aggregate
principal amount of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
you, but shall not be later than seven full business days and not be earlier
than two full business days after the exercise of said option, unless otherwise
agreed upon by you and the Operating Partnership. If the option is exercised as
to all or any portion of the Option Underwritten Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total aggregate principal amount of Option Underwritten Securities then
being purchased which the aggregate principal amount of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities, subject to such adjustments as you in your discretion
shall make to eliminate any sales or purchases of fractional Option Underwritten
Securities.
(c) Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W.,
Washington, D.C. 20004, or at such other place as shall be agreed upon by you
and the Operating Partnership, at 10:00 a.m. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 p.m. (Eastern Time) on any given day)
-20-
21
business day unless postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement, or such other time as
shall be agreed upon by you and the Operating Partnership (each such time and
date of payment and delivery being herein called a "Closing Time"). In addition,
in the event that the Underwriters have exercised their option, if any, to
purchase any or all of the Option Underwritten Securities, payment of the
purchase price for, and delivery of such Option Underwritten Securities, shall
be made at the above-mentioned offices of Hogan & Hartson L.L.P., or at such
other place as shall be agreed upon by you and the Operating Partnership, on the
relevant Date of Delivery as specified in the notice from you to the Operating
Partnership.
Payment shall be made to the Operating Partnership, by wire
transfer or by certified or official bank check or checks drawn in Federal or
similar same-day funds payable to the order of the Operating Partnership, as
applicable, against delivery to you for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It is
understood that each Underwriter has authorized you, for its account, to accept
delivery of, receipt for, and make payment of the purchase price, for the
Underwritten Securities which it has severally agreed to purchase. You,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose check has not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) The Underwritten Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least two full business days prior to the applicable Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities will
be made available for examination and packaging by you on or before the first
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
SECTION 3. Covenants of the Operating Partnership. The
Operating Partnership covenants with you and with each Underwriter participating
in the offering of Underwritten Securities, as follows:
(a) In respect of each offering of Underwritten
Securities, the Operating Partnership will prepare a
Prospectus Supplement setting forth the principal amount of
Underwritten Securities covered thereby and their terms not
otherwise specified in the
-21-
22
Prospectus or the Indenture pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters
participating in the offering and the principal amount of
Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers
in connection with the offering, the price at which the
Underwritten Securities are to be purchased by the
Underwriters from the Operating Partnership, the initial
public offering price, if any, the selling concession and
reallowance, if any, and such other information as you and the
Operating Partnership deem appropriate in connection with the
offering of the Underwritten Securities; and the Operating
Partnership will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations within the time period
required by such Rule and will furnish to the Underwriters
named therein as many copies of the Prospectus and such
Prospectus Supplement as you shall reasonably request. If, at
the time that the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance
upon Rule 430A of the 1933 Act Regulations, then immediately
following execution of the applicable Terms Agreement, the
Operating Partnership will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A
and Rule 424(b) of the 1933 Act Regulations, copies of an
amended Prospectus or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement
(including an amended Prospectus), including all information
so omitted.
(b) The Operating Partnership will notify you
immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the Commission for filing of any
Prospectus Supplement or other supplement or amendment to the
Prospectus or any document to be filed pursuant to the 1934
Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Underwritten Securities or offering or sale in any
jurisdiction, or of any proceedings for any of such purposes;
and the Operating
-22-
23
Partnership will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection
with sales of the Underwritten Securities, the Operating
Partnership will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including
any filing under Rule 462(b) of the 1933 Act Regulations), any
Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, and will
furnish you with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to
which you or counsel for the Underwriters shall object.
(d) The Operating Partnership has furnished or will
deliver to you and counsel for the Underwriters, without
charge, as many conformed copies of the Registration Statement
as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and
certificates of experts as you may reasonably request. The
copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(e) The Operating Partnership will deliver to each
Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter may reasonably
request, and the Operating Partnership hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The
Operating Partnership will furnish to each Underwriter,
without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus as such Underwriter
may reasonably request. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission
-23-
24
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(f) The Operating Partnership will comply with the
1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this
Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when
the Prospectus is required by the 1933 Act or the 1934 Act to
be delivered in connection with sales of the Underwritten
Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or for the Operating
Partnership, to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances existing at the time it is delivered to a
purchaser not misleading, or if it shall be necessary, in the
reasonable opinion of either of such counsel, at any such time
to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, then the Operating
Partnership will promptly prepare and file with the Commission
such amendment or supplement in form and substance reasonably
satisfactory to counsel for the Underwriters, whether by
filing documents pursuant to the 1933 Act, the 1934 Act or
otherwise, as may be necessary to correct such statement or
omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Operating
Partnership will furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Operating Partnership will use its reasonable
best efforts, in cooperation with the Underwriters, to qualify
the Underwritten Securities for offering and sale under the
applicable securities laws and real estate syndication laws of
such states and other jurisdictions (domestic or foreign) as
you may designate and to maintain such qualifications in
effect; provided, however, that the Operating Partnership
shall not be obligated to file any general consent service of
process or to qualify as a foreign corporation in any
jurisdiction in which it
-24-
25
is not so qualified or to subject itself to taxation in
respect to doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the
Underwritten Securities have been so qualified, the Operating
Partnership will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required for the
distribution of the Underwritten Securities.
(h) With respect to each sale of Underwritten
Securities, the Company and the Operating Partnership will
make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earning statement (in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a 12-month period beginning not later
than the first day of the Operating Partnership's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement.
(i) The Operating Partnership will use the net
proceeds received by it from the sale of the Underwritten
Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(j) The Operating Partnership will not, between the
date of the applicable Terms Agreement and the termination of
any trading restrictions or the applicable Closing Time,
whichever is later, with respect to the Underwritten
Securities covered thereby, without your prior written
consent, offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any debt securities of the
same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten
Securities which are to be sold pursuant to such Terms
Agreement).
(k) The Operating Partnership, during the period when
the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(l) In respect to each offering of Debt Securities,
the Company will qualify an Indenture under the 1939 Act.
-25-
26
(m) The Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's
Corporation ("S&P"), Moody's Investors Service, Inc.
("Moody's") or any other nationally recognized statistical
rating organization to provide their respective credit ratings
of any Underwritten Securities, if applicable.
SECTION 4. Payment of Expenses. The Operating Partnership will
pay all expenses incident to the performance of its obligations under this
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation and delivery to the Underwriters of this Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures, and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities to the Underwriters, (iii) the
preparation, issuance and delivery of the Underwritten Securities, (iv) the
reasonable fees and disbursements of the Operating Partnership's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the reasonable fees and disbursements of the Trustees,
and their respective counsel, (v) the qualification of the Underwritten
Securities under state securities laws and real estate syndication laws in
accordance with the provisions of Section 3(g) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, and delivery of the
Blue Sky Memorandum and any amendment thereto, (vi) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheet, and
the Prospectus and any amendments or supplements thereto, (vii) any fees charged
by nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, (viii) the fees and expenses incurred with respect to
the listing of the Underwritten Securities on any national exchange, (ix) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Underwritten Securities and any related Underlying Securities, (x) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2710(c)(8) of the Conduct Rules
of the NASD), if applicable, (xi) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee, in
connection with the Indenture and the Underwritten Securities, and (xii) the
preparation, issuance and delivery to the Depository Trust Company for credit to
the accounts of the respective Underwriters of any global note registered in the
name of Cede & Co., as nominee for the Depository Trust Company.
-26-
27
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i) hereof, the
Operating Partnership shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy as of the date hereof and of Closing Time of the representations and
warranties of the Operating Partnership contained herein, to the accuracy of the
statements of officers of the Company, Post GP, the Operating Partnership or any
Subsidiary made in any certificate delivered pursuant to the provisions hereof,
to the performance by the Operating Partnership of all of its covenants and
other obligations hereunder, and to the following further conditions:
(a) (i) The Registration Statement, including any
Rule 462(b) Registration Statement, shall have become effective under
the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters; (ii) a prospectus containing information
relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been
filed within the prescribed time period, and prior to the applicable
Closing Time with the Commission in accordance with Rule 424(b) (or
any required post-effective amendment providing such information shall
have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Operating Partnership has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term
Sheet including the Rule 434 information shall have been filed with
the Commission in accordance with Rule 424(b)(7); (iii) the rating
assigned by any nationally recognized statistical rating organization
to Debt Securities of the Operating Partnership as of the date of the
applicable Terms Agreement shall not have been lowered since such date
nor shall any such rating organization have publicly announced that it
has placed any Debt Securities of the Operating Partnership on what is
commonly termed a "watch list" for possible downgrading; and (iv)
there shall not have come to your attention any facts that would cause
you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the
-27-
28
time it was required to be delivered to purchasers of the Underwritten
Securities, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not
misleading.
(b) At Closing Time, the Representatives shall have
received the opinion, dated as of the applicable Closing Time, of King
& Spalding, counsel for the Company, Post GP, the Operating
Partnership and the Subsidiaries, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the
effect that:
(i) The Operating Partnership has been duly
formed and is validly existing as a limited partnership under
the Georgia Act. The Operating Partnership has partnership
power and authority to own, lease and operate its properties
and to conduct the business in which it is engaged, and, to
counsel's knowledge, is duly qualified as a foreign
partnership in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding interests in
the Operating Partnership have been duly authorized and
validly issued and fully paid.
(ii) Each of Post Services, Inc., Post Asset
Management, Inc., Post Landscape Services, Inc., RAM Partners,
Inc. and any Significant Subsidiary within the meaning of Rule
1-02 of Regulation S-X (collectively, the "Significant
Subsidiaries") has been duly formed and is validly existing
and in good standing under the laws of the jurisdiction of its
formation. Each of the Significant Subsidiaries has the power
and authority to own, lease and operate its properties and to
conduct the business in which it is engaged, and, to counsel's
knowledge, is duly qualified as a foreign corporation or
partnership and is in good standing in the jurisdictions set
forth in an exhibit to the opinion. All of the issued and
outstanding shares of capital stock, LLC interests and
partnership interests of each Significant Subsidiary have been
duly authorized and validly issued, are fully paid and are
owned, to such counsel's knowledge, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity, other than as set forth in the Registration
Statement or Prospectus and the transfer restrictions set
forth in the Option and Transfer Agreement by and among the
Operating Partnership, Post Services, Inc., John A. Williams
and John T. Glover. The ownership of the
-28-
29
shares of capital stock of each Significant Subsidiary is as
described in the Registration Statement or Prospectus.
(iii) The Indenture has been duly qualified
under the 1939 Act and has been duly authorized, executed and
delivered by the Operating Partnership and (assuming due
authorization, execution and delivery by the Trustee)
constitutes the valid and binding obligation of the Operating
Partnership enforceable against the Operating Partnership in
accordance with its terms, subject to (1) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, or similar laws affecting creditors' rights
generally from time to time in effect and (2) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity). However, we express no opinion as to the effect on
enforceability of (A) requirements that a claim with respect
to any Underwritten Securities payable other than in U.S.
dollars (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) federal or state law limiting, delaying
or prohibiting the making of payments outside the United
States.
(iv) The Underwritten Securities have been
duly and validly authorized by all necessary action and, when
executed, authenticated and delivered in accordance with the
Indenture and against payment therefor as specified in the
applicable Terms Agreement, will be entitled to the benefits
of the Indenture and will be valid and legally binding
obligations of the Operating Partnership enforceable against
the Operating Partnership in accordance with their terms,
subject to (1) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, or similar
laws affecting creditors' rights generally from time to time
in effect and (2) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at
law or in equity). However, we express no opinion as to the
effect on enforceability of (A) requirements that a claim with
respect to any Underwritten Securities payable other than in
U.S. dollars (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) federal or state law limiting, delaying
or prohibiting the making of payments outside the United
States.
-29-
30
(v) Each of this Agreement and the
applicable Terms Agreement has been duly and validly
authorized, executed and delivered by the Operating
Partnership, and the Operating Partnership has the power and
authority to perform its obligations hereunder and thereunder.
(vi) The execution and delivery of this
Agreement and the applicable Terms Agreement by the Operating
Partnership, and the performance by the Operating Partnership
of its obligations hereunder and thereunder and the
consummation of the transactions contemplated hereunder and
thereunder, did not, do not and will not conflict with or
constitute a breach or violation of, or default under: (A) to
the knowledge of counsel, any instrument or agreement filed or
incorporated by reference as an exhibit to the Registration
Statement to which the Operating Partnership is a party or by
which it or any of its respective properties or other assets
or any Property may be bound or subject; (B) the certificate
of limited partnership or partnership agreement of the
Operating Partnership; or (C) to the knowledge of counsel, any
applicable law, rule, order, administrative regulation or
administrative or court decree, except that no opinion is
expressed under this clause (C) as to this Agreement or the
Terms Agreement with respect to federal, state or foreign
securities laws.
(vii) The Registration Statement is
effective under the 1933 Act and, to counsel's knowledge based
solely upon telephonic confirmation from the staff of the
Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been initiated or
threatened by the Commission.
(viii) The Underwritten Securities and the
Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus.
(ix) No consent, approval, authorization or
order of, or qualification with, any governmental body or
agency and no consent, approval, or authorization of any
person other than the Operating Partnership is required for
the performance by the Operating Partnership of its
obligations under this Agreement, the applicable Terms
Agreement, the Indenture or the Underwritten Securities,
except such as may be required under the 1933 Act, the
-30-
31
1939 Act, and the securities, Blue Sky or real estate
syndication laws of various states or the rules of the NASD in
connection with the offer and sale of the Underwritten
Securities.
(x) To the knowledge of counsel, there is no
action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or threatened against or affecting the Company, the Operating
Partnership, any Significant Subsidiary or any material
property of the Company that is required to be disclosed in
the Registration Statement (other than as disclosed therein)
or that, if determined adversely to the Company, the Operating
Partnership, any Significant Subsidiary or any such property,
could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated by
this Agreement. To the knowledge of counsel, there are no
contracts or documents of the Operating Partnership or any
Significant Subsidiary which are required by the 1933 Act, or
by the 1933 Act Regulations, the 1934 Act, or the 1934 Act
Regulations to be filed as exhibits to the Registration
Statement, the Prospectus or the documents incorporated by
reference which have not been so filed as exhibits as
required.
(xi) None of the Company, the Operating
Partnership or any Subsidiary is required to be registered as
an investment company under the 1940 Act.
(xii) The information in the Prospectus and
the applicable Prospectus Supplement under the headings
"Description of Debt Securities," "Description of Notes" and
"Federal Income Tax Considerations" to the extent that it
constitutes matters of law or legal conclusions has been
reviewed by such counsel, is correct and presents fairly the
information required to be disclosed therein.
(xiii) At the time the Registration
Statement became effective and at the Representation Date, the
Registration Statement and Prospectus (except for financial
statements and supporting schedules and other financial
information and data included or incorporated by reference
therein or the Statement of Eligibility, as to which such
counsel need not express any opinion), excluding the documents
incorporated by reference therein, complied as to form in all
material respects with the requirements of the 1933 Act, the
1939 Act and the 1933 Act Regulations.
-31-
32
(xiv) Each document heretofore filed
pursuant to the 1934 Act and incorporated or deemed to be
incorporated by reference in the Prospectus (except for
financial statements and supporting schedules and other
financial information and data included or incorporated by
reference therein, as to which such counsel need not express
any opinion) complied as to form in all material respects with
the requirements of the 1934 Act and the applicable 1934 Act
Regulations in effect at the date of their respective filings.
(xv) The Company was organized and has
operated in conformity with the requirements for qualification
and taxation as a REIT each of its taxable years beginning
with the year ended December 31, 1993, and its current
organization and method of operation should enable it to
continue to meet the requirements for qualification and
taxation as a REIT.
(xvi) The Operating Partnership and each
Significant Subsidiary that is a partnership ("Subsidiary
Partnership") are properly classified as partnerships, and not
as corporations or as associations taxable as corporations,
for Federal income tax purposes throughout the period from
July 22, 1993 through the date hereof, or, in the case of any
Subsidiary Partnerships that have terminated, through the date
of termination of such Subsidiary Partnerships.
(c) At Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of Hogan &
Hartson L.L.P., counsel for the Underwriters, with respect to the
matters set forth in (i) (first sentence only), (iii), (iv), (v),
(vii), (viii), (xii) (solely with respect to information set forth in
"Description of Debt Securities" and "Description of Notes"), and
(xiii) of Section 5(b) above.
(d) In rendering their opinions required by Sections
5(b) and (c), respectively, King & Spalding and Hogan & Hartson L.L.P.
shall each additionally state (which shall not constitute an opinion)
that no facts have come to the attention of such counsel which cause
them to believe that the Registration Statement or any amendment
thereto (except for financial statements and supporting schedules and
other financial information and data included therein or omitted
therefrom, or the Statement of Eligibility, as to which such counsel
need not express
-32-
33
any view), as of the time it became effective under the 1933 Act (and
as of the time of filing of the Operating Partnership's Annual Report
on Form 10-K, if filed subsequent to the time of effectiveness) or at
the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any amendment or
supplement thereto (except as aforesaid) as of the date of the
applicable Terms Agreement or at the applicable Closing Time,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
In giving their opinions required by Section 5(b) and
5(c), such counsel (A) may rely as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Operating Partnership, Post GP and the Company and
(B) may rely as to the qualification and good standing of each of the
Operating Partnership or any of the Subsidiaries to do business in any
state or jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions, which opinions
shall be in form and substance satisfactory to counsel for the
Underwriters. In giving their belief required in this Section 5(d),
such counsel may state that their belief is based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments and supplements thereto and review and
discussion of the contents thereof.
(e) At Closing Time, there shall not have been, since
the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any Material
Adverse Effect, whether or not arising in the ordinary course of
business, and you shall have received a certificate of the President
or a Vice President of Post GP and the Operating Partnership, and the
chief financial officer or chief accounting officer of Post GP and the
Operating Partnership, dated as of the Closing Time, to the effect
that (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in Section 1 are true and correct with
the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Operating Partnership has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
-33-
34
are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(f) At the time of the execution of the applicable
Terms Agreement, you shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to
you together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect that: (i) they are
independent accountants with respect to the Company, the Operating
Partnership and their Subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the
consolidated financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus and covered by their opinions therein comply in form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations; (iii) based upon limited
procedures set forth in detail in such letter (which shall include,
without limitation, the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
with respect to the unaudited financial statements of the Company and
the Operating Partnership included or incorporated by reference in the
Registration Statement), nothing has come to their attention which
causes them to believe that, (A) any material modifications should be
made to the unaudited condensed financial statements included or
incorporated by reference in the Registration Statement for them to be
in conformity with GAAP or (B) the unaudited condensed financial
statements included or incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations or (C) at a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the Common
Stock of the Company or partnership interests in the Operating
Partnership or in the consolidated long term debt of the Company and
the Operating Partnership or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in
the Registration Statement and the Prospectus or, during the period
from the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than five days prior
to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the preceding
-34-
35
year, in consolidated revenues, or decrease in net income or net
income per share of common stock of the Company and the Operating
Partnership, as applicable, except in all instances for changes,
increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition
to the audit referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain
specified procedures with respect to certain amounts, percentages and
financial and statistical information which are included in the
Registration Statement and the Prospectus and which are specified by
you, and have found such amounts, percentages and financial and
statistical information to be in agreement with relevant accounting,
financial and other records of the Company and the Operating
Partnership and their Subsidiaries identified in such letter.
(g) At Closing Time, you shall have received from
PricewaterhouseCoopers LLP a letter, dated as of the applicable
Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (f) of this Section 5,
except that the specified date referred to shall be a date not more
than three business days prior to the applicable Closing Time and if
the Operating Partnership has elected to rely on Rule 430A of the 1933
Act Regulations, to the further effect that they have carried out the
procedures specified in clause (iv) of subsection (f) of this section
with respect to certain amounts, percentages and financial and
statistical information specified by you and deemed to be part of the
Registration Statement pursuant to Rule 430A(b) and have found such
amounts, percentages and financial and statistical information to be
in agreement with the records specified in such clause (iv).
(h) At Closing Time and at any relevant Date of
Delivery, the Underwritten Securities shall be rated investment grade
by any "nationally recognized statistical rating organization," as
defined by the Commission for purposes of Rule 436(g)(2) of the 1933
Act Regulations, if and as specified in the applicable Terms
Agreement, and the Operating Partnership shall have delivered to you a
letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to you, confirming that the Underwritten
Securities have such ratings. Since the time of execution of such
Terms Agreement, there shall not have occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Company's
or the Operating Partnership's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under
-35-
36
surveillance or review, with possible negative implications, its
rating of the Underwritten Securities or any of the Company's or the
Operating Partnership's other securities.
(i) If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(j) In the event that the Underwriters are granted an
over- allotment option by the Operating Partnership in the applicable
Terms Agreement and the Underwriters exercise their option to purchase
all or any portion of the Option Underwritten Securities, the
representations and warranties of the Operating Partnership contained
herein and the statements in any certificates furnished by the Company
or the Operating Partnership hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, you
shall have received:
(1) A certificate, dated such Date of Delivery, of
the President or a Vice President of Post GP and the Operating
Partnership and the chief financial officer or chief
accounting officer of Post GP and the Operating Partnership,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery,
(2) The favorable opinion of King & Spalding, counsel
for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery relating to
the Option Underwritten Securities and otherwise to the same
effect as the opinion required by Section 5(b) hereof
(including the statement of belief required by Section 5(d)
hereof).
(3) The favorable opinion of Hogan & Hartson LLP,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(c)
hereof (including the statement of belief required by Section
5(d) hereof).
(4) A letter from PricewaterhouseCoopers LLP, in form
and substance satisfactory to you and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to you pursuant to Section 5(f) here of,
except that the
-36-
37
"specified date" on the letter furnished pursuant to this
paragraph shall be a date not more than three business days
prior to such Date of Delivery.
(k) At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Operating Partnership in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to you and counsel for the Underwriters.
(l) If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
you by notice to the Operating Partnership at any time at or prior to
the Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 4, 6 and 7
shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) The Operating Partnership agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
and any director, officer, employee or affiliate thereof, as follows:
(1) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A information and
the Rule 434 information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not
-37-
38
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(2) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the
Operating Partnership; and
(3) against any and all expense whatsoever,
as incurred (including, without limitation, the fees and other
charges of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A information and
the Rule 434 information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Operating Partnership, Post GP Holdings and their respective
directors, officers, employees and affiliates and each person, if any, who
controls the Operating Partnership and Post GP Holdings within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act
-38-
39
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A information and the Rule 434 information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Operating Partnership by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by Merrill Lynch, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Operating Partnership. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
-39-
40
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Operating Partnership on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Operating Partnership, on the one hand, and of the Underwriters, on
the other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before deducting
expenses) received by the Operating Partnership, and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Operating Partnership, on the one
hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates
-40-
41
to information supplied by the Operating Partnership or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Operating Partnership or
Post GP Holdings within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Operating
Partnership. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of
Initial Underwritten Securities set forth opposite their respective names in
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement or in certificates of officers
of Post GP or the Operating Partnership submitted pursuant hereto or thereto
-41-
42
shall remain operative and in full force and effect, regardless of any
termination of this Agreement or the applicable Terms Agreement or investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of Post GP and the Operating Partnership, and shall survive delivery of
and payment for the Underwritten Securities.
SECTION 9. Termination of Agreement
(a) This Agreement (excluding the applicable Terms Agreement)
may be terminated for any reason at any time by the Operating Partnership or by
you upon the giving of 30 days' prior written notice of such termination to the
other party hereto.
(b) You may terminate the applicable Terms Agreement, by
notice to the Operating Partnership, at any time at or prior to the applicable
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs, assets
or business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities are denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in your judgment, impracticable to market the Underwritten
Securities or to enforce contracts for the sale of the Underwritten Securities,
or (iii) trading in any securities of the Company has been suspended or limited
by the Commission or the New York Stock Exchange, Inc. or if trading generally
on the New York Stock Exchange, Inc. or the American Stock Exchange, Inc. has
been suspended or limited, or, minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by order of the Commission, or any other governmental authority,
(iv) a banking moratorium has been declared by either Federal or New York
authorities or, if the Underwritten Securities are denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries or (v) if the rating
assigned by any nationally recognized statistical rating organization to any
Debt Securities of the Operating Partnership as of the date of the applicable
Terms Agreement shall have been lowered since such
-42-
43
date or if any such rating organization shall have publicly announced that it
has placed any Preferred Stock of the Company or Debt Securities of the
Operating Partnership on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(b), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(c) If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 4, 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the applicable Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal
amount of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms bear to
the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such
-43-
44
Date of Delivery) shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Operating Partnership shall
have the right to postpone the applicable Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch at Merrill Lynch World
Headquarters, World Financial Center, North Tower - 10th Floor, New York, New
York 10281- 1310, attention: Tjarta van S. Clagett, notices to the Company and
the Operating Partnership shall be directed to them at 4401 Northside Parkway,
Suite 800, Atlanta, Georgia 30327, attention: Jeffrey A. Harris, President.
SECTION 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Operating
Partnership, you and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Agreement or such Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters, the Operating
Partnership and Post GP Holdings and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or such Terms Agreement or any
provision herein or therein contained. This Agreement and such Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten Securities from any
-44-
45
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS PURCHASE AGREEMENT
AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE OPERATING
PARTNERSHIP AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER THIS AGREEMENT
SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF APPROPRIATE
JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Counterparts.
This Agreement and the applicable Terms Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall contribute a single instrument.
SECTION 15. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
-45-
46
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Agreement, along with all counterparts, will become a
binding agreement between you and the Operating Partnership in accordance with
its terms.
Very truly yours,
POST APARTMENT HOMES, L.P.
By: POST GP HOLDINGS, INC., its
general partner
By: /s/ John T. Glover
------------------------------
Name: John T. Glover
Title: Vice Chairman
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Tjarda Clagett
----------------------------------
Authorized Signatory
-46-
47
Exhibit A
POST APARTMENT HOMES, L.P.
a Georgia limited partnership
Debt Securities
TERMS AGREEMENT
To: Post Apartment Homes, L.P.
4401 Northside Parkway,
Suite 800,
Atlanta, Georgia 30327
Ladies and Gentlemen:
We understand that Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), proposes to issue and sell [$________
aggregate principal amount of its [senior] [subordinated] debt securities (the
"Debt Securities")] [such securities also being hereinafter referred to as the
"Initial Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase, severally and not jointly, the principal
amount of Underwritten Securities opposite their names set forth below at the
purchase price set forth below, and a proportionate share of Option Underwritten
Securities set forth below, to the extent any are purchased].
Principal Amount
Underwriter of Initial Underwritten Securities
Total [$]
A-1
48
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share:
____% of the principal amount, plus accrued interest [amortized
original issue discount], if any, from __________.
Purchase price per share: _____% of principal amount, plus accrued interest
[amortized original issue discount], if any, from __________ (payable
in next day funds).
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as
Annex I entitled "POST APARTMENT HOMES, L.P.--Debt Securities--Purchase
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-2
49
Please accept this offer no later than _____ o'clock P.M. (New
York City time) on ____________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
----------------------------
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
POST APARTMENT HOMES, L.P.
By: POST GP HOLDINGS, INC., its
general partner
By:
-----------------------------
Name:
Title:
A-3