EXHIBIT 1(a)
POST APARTMENT HOMES, L.P.
UNDERWRITING AGREEMENT
October 6, 2004
WACHOVIA CAPITAL MARKETS, LLC
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
as Representatives of the several Underwriters
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
Post Apartment Homes, L.P., a Georgia limited partnership (the
"Operating Partnership"), confirms its agreement with Wachovia Capital Markets,
LLC ("Wachovia Securities") and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Wachovia Securities and Merrill Lynch are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Operating Partnership and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $100,000,000 aggregate principal amount
of the Operating Partnership's 5.125% Senior Notes due 2011 (the "Securities").
The Securities are to be issued pursuant to an indenture dated as of September
15, 2000 (the "Base Indenture") between the Operating Partnership and SunTrust
Bank, as trustee (the "Trustee"), as supplemented by the First Supplemental
Indenture, dated as of December 1, 2000 (the "First Supplemental Indenture" and
together with the Base Indenture, the "Indenture").
The Operating Partnership understands that the Underwriters propose to
make a public offering of the Securities as soon as the Representatives deems
advisable after this Agreement has been executed and delivered and the Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively, the "1939
Act").
The Operating Partnership has prepared and filed with the Securities
and Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "1933 Act"), registration statements
(Nos. 333-42884 and 333-55994) on Form S-3, relating to certain securities (the
"Shelf Securities") to be issued from time to time by the Operating Partnership.
The Operating Partnership also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. Such registration statements and any
post-effective amendments thereto, if applicable, have been declared effective
by the Commission. The registration statements as amended to the date of this
Agreement are hereinafter referred to collectively as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"Base Prospectus." The Base Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus."
Any reference in this Agreement to the Registration Statement, the Base
Prospectus, any preliminary form of Prospectus (a
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"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "1934 Act") on or before the date of this Agreement or the
date of the Base Prospectus, any preliminary prospectus or the Prospectus, as
the case may be; and any reference to "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any filing
of documents under, or any documents filed under, the 1934 Act after the date of
this Agreement, or the date of the Base Prospectus, any preliminary prospectus
or the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
SECTION 1. Representations and Warranties. The Operating
Partnership represents and warrants to, and agrees with, each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The
Operating Partnership meets the requirements for use of Form S-3 under
the 1933 Act. The Registration Statement has become effective under the
1933 Act and 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 instituted or are pending or, to
the knowledge of the Operating Partnership, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been duly complied with.
At the respective times that each Registration Statement
became effective and at the Closing Time, each Registration Statement,
and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1939 Act, and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
(i) statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with written
information furnished to the Operating Partnership by any Underwriter
through Wachovia Securities expressly for use in the Registration
Statement (or any amendment thereto) or to the Prospectus (or any
amendment or supplement thereto) and (ii) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the 1939 Act of the Trustee.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were filed with the Commission,
complied in all material respects with the requirements of the 1934 Act
and did 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.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included in
the Registration Statement are independent public accountants as
required by the 1933 Act.
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(iv) Financial Statements. The financial statements
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly in all material
respects the financial position of each of the Company and the
Operating Partnership and their respective consolidated subsidiaries at
the dates indicated and the statement of operations, shareholders' or
partners' equity (as applicable) and cash flows of each of the Company
and the Operating Partnership and their respective consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. 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 financial condition,
or in the earnings or business affairs of the Operating Partnership and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"); (B)
there have been no transactions entered into by the Operating
Partnership or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Operating Partnership and its subsidiaries considered as one
enterprise; and (C) there has been no material change in the short-term
debt or long-term debt of the Operating Partnership and its
consolidated subsidiaries.
(vi) Good Standing of the Operating Partnership. The
Operating Partnership has been duly organized and is validly existing
as a limited partnership in good standing under the laws of the State
of Georgia and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Operating Partnership is duly qualified as a foreign
entity to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing could
not be reasonably expected to result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Operating Partnership (as such term is defined in
Rule 1-02 of Regulation S-X) (each a "Significant Subsidiary" and,
collectively, the "Significant Subsidiaries") has been duly organized
and is validly existing in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified 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 or
the conduct of business, except where the failure so to qualify or to
be in good standing could not be reasonably expected to result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock, limited liability company interest or partnership interest, as
the case may be, of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Operating Partnership, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; no outstanding capital stock, limited
liability company interest or partnership interest of any Significant
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Significant Subsidiary. Each subsidiary
of the Operating Partnership,
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which is a "significant subsidiary" within the meaning of Rule 1-02(w)
of Regulation S-X, is disclosed in the Registration Statement.
(viii) Capitalization. The Operating Partnership has an
authorized capitalization as set forth in the Prospectus. The
Prospectus accurately describes the interests in the Operating
Partnership held by the Company. The outstanding partnership interests
of the Operating Partnership have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
partnership interests of the Operating Partnership was issued in
violation of the preemptive or other similar rights of any
securityholder of the Operating Partnership.
(ix) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Operating Partnership.
(x) Authorization of the Indenture. Each of the Base
Indenture and the Supplemental Indenture has been duly authorized by
the Operating Partnership and the Indenture has been duly qualified
under the 1939 Act and each constitutes a valid and binding agreement
of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have
been duly authorized and, at the Closing Time, will have been duly
executed by the Operating Partnership and, when authenticated, issued
and delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will be in the form contemplated by the Indenture and will
constitute valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Securities will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The
terms of the Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus.
(xiii) Absence of Defaults and Conflicts. Neither the
Operating Partnership nor any of its subsidiaries is in violation of
its organizational documents in default in the performance or
observance of 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
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 the property
or assets of the Operating Partnership or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that could not be reasonably expected to result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement,
the Indenture and the Securities and the transactions contemplated
thereby (including the issuance and sale of the Securities and the use
of the proceeds from the sale of the Securities as described in the
Prospectus under the
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caption "Use of Proceeds") and compliance by the Operating Partnership
with its obligations hereunder and under the Indenture and the
Securities 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 property or assets of the Operating Partnership or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or
encumbrances that could not be reasonably expected to result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the organizational documents of the Operating
Partnership or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Operating Partnership or any subsidiary or any of
their assets, properties or operations, except for those violations
that could not be reasonably expected to 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.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought 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 Company, the Operating Partnership or any subsidiary,
which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which would result in a Material Adverse
Effect, or which would materially and adversely affect the consummation
of the transactions contemplated in this Agreement or the performance
by the Operating Partnership of its obligations hereunder.
(xv) Absence of Manipulation. Neither the Operating
Partnership nor any affiliate of the Operating Partnership has taken,
nor will the Operating Partnership or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted
stabilization or manipulation of the price of any security of the
Operating Partnership to facilitate the sale or resale of the
Securities.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Operating
Partnership of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by the
Operating Partnership, except such as have been already obtained or as
may be required under the 1933 Act or state securities laws and except
for the qualification of the Indenture under the 1939 Act.
(xvii) Possession of Licenses and Permits. The Operating
Partnership and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure so to possess
could not, singly or in the aggregate, be reasonably expected to result
in a Material Adverse Effect; the Operating Partnership and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply could
not, singly or in the aggregate, be reasonably expected to result in a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect,
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except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect could not,
singly or in the aggregate, be reasonably expected to result in a
Material Adverse Effect; and 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.
(xviii) Real Estate. (A) Except as otherwise set forth in the
Registration Statement or the Prospectus, the Operating Partnership and
its subsidiaries directly or indirectly hold good and marketable title
to the real property and improvements described as being owned by the
Operating Partnership and its subsidiaries in the Prospectus (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) 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, 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; and (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 could not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect; and (C) 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
be reasonably expected to, individually or in the aggregate, have a
Material Adverse Effect.
(xix) Insurance. 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
adequate and customary in the businesses in which they are engaged,
except where the failure to be so insured could not be reasonably
expected to have a Material Adverse Effect.
(xx) No Plan Assets. The assets of the Operating
Partnership do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended.
(xxi) Taxation as REIT. 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
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operation will enable it to continue to meet the requirements for
qualification and taxation as a REIT.
(xxii) Partnership Taxation. The Operating Partnership and
each subsidiary that is a partnership or a limited liability company
under state law (each a "Subsidiary Partnership") are properly
classified as partnerships or disregarded entities, 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.
(xxiii) Tax Returns. Each of the Company and the Operating
Partnership and each of their subsidiaries have filed or caused to be
filed all federal, state, local and foreign tax returns, reports,
information returns and statements which have been required to be filed
by them (except for returns, reports, information returns and
statements the failure to file which could not be reasonably expected
to 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 and in respect of which adequate reserves are
being maintained and except to the extent any such failure to pay could
not be reasonably expected to have a Material Adverse Effect.
(xxiv) Investment Company Act. Neither the Company nor the
Operating Partnership is required, and upon the issuance and sale of
the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required,
to register as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(xxv) Environmental Laws. Except as described in the
Prospectus and except as could not, singly or in the aggregate, be
reasonably expected to result in a Material Adverse Effect, (A) neither
the Operating Partnership nor any of its subsidiaries is in violation
of any legally binding applicable federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Operating
Partnership and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or, to
the knowledge of the Operating Partnership, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Operating
Partnership or any of its subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Operating Partnership or any of its subsidiaries relating to
Hazardous Materials or any applicable Environmental Laws.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Operating Partnership agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Operating Partnership, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Mayer, Brown,
Rowe & Maw, LLP, 190 S. LaSalle Street, Chicago, Illinois 60603, or at such
other place as shall be agreed upon by the Representatives and the Operating
Partnership, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Operating Partnership (such time and
date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Wachovia
Securities, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities
shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time. The Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time.
SECTION 3. Covenants of the Operating Partnership. The
Operating Partnership covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Operating Partnership, subject to Section 3(b), will notify the
Representatives immediately (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission relating to the Prospectus or the
Registration Statement, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or any document incorporated by reference therein or for additional information,
and (iv) of 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 Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Operating Partnership will effect the filings necessary pursuant to Rule 424(b)
in compliance with such rule. The Operating Partnership will make every
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reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. Until the end of the period during which
the Prospectus is required to be delivered under the 1933 Act in connection with
the offering and sale of the Securities, the Operating Partnership will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement 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, will furnish the Representatives 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 the Representatives
or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Operating Partnership
has furnished or will deliver to the Representatives and counsel for the
Underwriters upon request, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto relating to the
Securities (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Operating Partnership has
delivered to each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter reasonably requested, 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, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Operating
Partnership will comply with the 1933 Act, the 1934 Act and the 1939 Act so as
to permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Operating Partnership, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act, the Operating Partnership will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement 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 such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Operating Partnership will use
its reasonable best efforts, in cooperation with the Underwriters, to qualify
the Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement; provided,
however, that the Operating Partnership shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in
9
any jurisdiction in which it is not so qualified or so subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Operating Partnership will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such jurisdictions
as the Underwriters may request.
(g) Rule 158. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Operating Partnership will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(i) Restriction on Sale of Securities. Until the Closing Time, the
Operating Partnership and the Company will not, without the prior written
consent of Wachovia Securities, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise transfer or
dispose of, any debt securities of the Company or the Operating Partnership.
(j) Reporting Requirements. The Operating Partnership, during the
period when the Prospectus is required to be delivered under the 1933 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Operating Partnership will pay all expenses
incident to the performance of its obligations under this 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, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Operating Partnership's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus and of the
Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (ix) the costs and expenses of the Operating
Partnership relating to investor presentations on any "road show" undertaken in
connection with the marketing of the Securities, including without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers
of the Operating Partnership and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show and (x) any
fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or Section
9(a)(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.
10
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Operating Partnership contained in
Section 1 hereof as of the date hereof and as of the Closing Time and to the
performance by the Operating Partnership of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement shall remain effective and at Closing Time 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. The Prospectus shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Operating Partnership. At Closing Time,
the Representatives shall have received the opinion, dated as of Closing Time,
of King & Spalding, LLP, counsel for the Operating Partnership, 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 set forth in Exhibit A hereto. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the States of New York and Georgia and the federal law of the United States,
upon the opinions of counsel satisfactory to the Representatives. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Operating Partnership and its subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown, Rowe & Maw LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in the first sentences of
clauses (i) and (ii) and the matters set forth in clauses (iii) (with respect to
the binding effect and enforceability of the Indenture), (iv) (with respect to
the binding effect and enforceability of the Securities) and (xii) of Exhibit A
hereto and the final paragraph thereof. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Operating
Partnership and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, the Representatives
shall have received a certificate, in form and substance reasonably satisfactory
to the Representatives, of the President or a Vice President of the Operating
Partnership and of the chief financial or chief accounting officer of the
Operating Partnership, dated as of Closing Time, as to the absence of the
matters set forth in Section 9(a)(i) hereof and to the effect that (i) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(ii) the Operating Partnership has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time and (iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Pricewaterhouse
Coopers LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in
11
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from Pricewaterhouse Coopers LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (e) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall
be rated at least Baa3 by Moody's Investor's Service Inc. and BBB by Standard &
Poor's Ratings Group, a division of McGraw-Hill, Inc., since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's or the Operating Partnership's other debt
securities by any "nationally recognized statistical rating agency", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's or
the Operating Partnership's other debt securities, in each case, with negative
implications (which shall not include announcements with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating).
(h) Additional Documents. At Closing Time, 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 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 and its partner(s) in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Operating
Partnership at any time at or prior to Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Operating Partnership
agrees to indemnify and hold harmless each Underwriter, its affiliates, as such
term is defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), its
selling agents 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 as follows:
(i) 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) or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained 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;
12
(ii) 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;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Wachovia
Securities), 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 (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense 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 Wachovia Securities expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); and (B) as to any
preliminary prospectus, the Prospectus or any amendment or supplement thereto,
this indemnity agreement shall not inure to the benefit of any Underwriter on
account of any loss, liability, claim, damage or expense arising from the fact
that such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) as then amended or
supplemented in any case where such delivery is required by the 1933 Act if the
Company has previously furnished copies thereof to such Underwriter in the
quantities requested and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in such preliminary prospectus, Prospectus (excluding documents
incorporated by reference) or amendment or supplement thereto, which the Company
has sustained the burden of proving was corrected in the Prospectus (excluding
documents incorporated by reference) as then amended or supplemented.
(b) Indemnification of Operating Partnership, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Operating Partnership, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act 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) 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
Wachovia Securities 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) Actions against Parties; Notification. 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 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 Wachovia Securities,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Operating
13
Partnership. An indemnifying party may participate at its own expense in the
defense of any such action and may assume the defense thereof with counsel
satisfactory to such indemnified party, and shall pay the fees and expenses of
such counsel; provided, however, that (i) if the indemnifying party fails to
assume such defense in a timely manner or (ii) if there exists or is reasonably
likely to exist in the opinion of the indemnified party a conflict of interest
or different defenses that would make it inappropriate in the judgment of such
indemnified party for the same counsel to represent both the indemnified party
and the indemnifying party, then such indemnified party shall be entitled to
retain its own counsel at the expense of the indemnifying 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.
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 Securities pursuant to this 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 Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (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 bear to
the aggregate initial public offering price of the Securities as set forth on
the cover of the Prospectus.
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 any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates 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
14
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 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 any 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 and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director (or person of
similar managerial role) of the Operating Partnership, each officer of the
Company and/or Operating Partnership who signed the Registration Statement, and
each person, if any, who controls the Operating Partnership 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 principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Operating Partnership or any of
its subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of any
Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling the Operating
Partnership and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Operating Partnership, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus (exclusive of any supplement thereto), any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
which in the judgment of the Representatives makes it impracticable or
inadvisable to market the Securities or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, 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 the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities or (iii) if
trading in any securities of the Company or the Operating Partnership has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or in the
Nasdaq National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
15
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States or (v) if a banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, 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
1, 6, 7 and 8 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 Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives 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, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the aggregate principal amount of the Securities to be purchased
hereunder, each of 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 hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the aggregate principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Operating Partnership shall
have the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
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 the Representatives c/o Wachovia Capital
Markets, LLC, One Wachovia Center, 301 South College Street, Charlotte, NC
attention of Debt Capital Markets; and notices to the Operating Partnership
shall be directed to it at Post Apartment Homes, L.P. Attn: Christopher J. Papa,
4401 Northside Parkway, Suite 800, Atlanta, GA 30327, Facsimile: 404-504-9388,
with a copy to King & Spalding LLP, 191 Peachtree Street, Atlanta, GA 30303,
Facsimile: 404-572-5147 Attn: John J. Kelley, III.
SECTION 12. Parties. This Agreement shall inure to the benefit
of and be binding upon each of the Underwriters and the Operating Partnership
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Operating Partnership and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal
16
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Operating Partnership 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 Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. TIME. TIME SHALL BE OF THE ESSENCE OF THIS
AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
SECTION 16. Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction hereof.
17
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 instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Operating Partnership in
accordance with its terms.
Very truly yours,
POST APARTMENT HOMES, L.P.
By: POST GP HOLDINGS, INC.
By /s/ Christopher J. Papa
------------------------------------
Title: Executive Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By /s/ Teresa Hee
-----------------------------------
Title: Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Mark E. Hagan
-----------------------------------
Title: Director
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
18
SCHEDULE A
Principal
Name of Underwriter Amount of Securities
------------------- --------------------
Wachovia Capital Markets, LLC $ 60,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 40,000,000
=============
Total............................................................................ $ 100,000,000
Sch A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be
99.831% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 0.625% of the principal amount thereof.
3. The interest rate on the Securities shall be 5.125% per annum.
Sch B-1
Exhibit A
(i) The Operating Partnership has been duly formed and is validly
existing as a limited partnership under the laws of the state of Georgia. 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 such counsel's knowledge, is duly qualified as a foreign entity 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) The Company, each Significant Subsidiary, and Post GP has been
duly formed and is validly existing and in good standing under the laws of the
jurisdiction of its formation and has the power and authority to own, lease and
operate its properties and to conduct the business in which it is engaged.
(iii) Each of the Base Indenture and the Supplemental Indenture have
been duly authorized, executed and delivered by the Operating Partnership and,
assuming that the Trustee has duly authorized, executed and delivered the Base
Indenture and the Supplemental Indenture and has otherwise satisfied all legal
requirements applicable to it to the extent necessary to make the Base Indenture
and the Supplemental Indenture binding against it, each of the Base Indenture
and the Supplemental Indenture constitute valid and binding agreements of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, subject, as to the enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally, and the effects of general
principles of equity. The Indenture has been duly qualified under the 1939 Act.
(iv) The issuance, execution and delivery of the Securities have
been duly authorized by the Operating Partnership. The Securities when duly
executed and delivered by the Operating Partnership and duly authenticated in
accordance with the terms of the Indenture and delivered and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, will be
valid and binding obligations of the Operating Partnership, enforceable against
the Operating Partnership in accordance with their terms, subject, as to the
enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the rights and remedies of creditors generally, and
the effects of general principles of equity.
(v) The Underwriting Agreement has been duly authorized, executed
and delivered by the Operating Partnership.
(vi) The execution and delivery of the Underwriting Agreement by
the Operating Partnership, and the performance by the Operating Partnership of
its obligations thereunder and the consummation of the transactions contemplated
thereunder, (A) do not conflict with or constitute a breach or violation of, or
default under, to the knowledge of such 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,
except such breaches, violations or defaults that could not reasonably be
expected to have a Material Adverse Effect; (B) do not and will not result in a
violation of the certificate of limited partnership or partnership agreement of
the Operating Partnership; or (C) do not and will not result in a violation of
any law, rule, regulation, judgment, order, writ or decree known to us to be
applicable to the Operating
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Partnership, except for such violations that could not be reasonably expected to
have a Material Adverse Effect.
(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. The Prospectus
was timely filed in the manner required by Rule 424 of the 1933 Act.
(viii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than the 1933 Act and 1939 Act,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states) is required to be made by the Operating Partnership
in connection with the authorization, execution and delivery of the Underwriting
Agreement or for the offering, issuance, sale or delivery of the Securities.
(x) To the knowledge of such 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 Operating Partnership that is required to be disclosed in the Registration
Statement (other than as disclosed therein).
(xi) Neither the Company nor the Operating Partnership is required
to be registered as an investment company under the 1940 Act.
(xii) At the time the Registration Statement became effective and at
the date of the Prospectus, the Registration Statement and the Prospectus (other
than the financial statements and notes thereto, the financial statement
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, and the Statement of Eligibility on Form T-1, 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 and the 1939 Act.
(xiii) Each document heretofore filed pursuant to the 1934 Act and
incorporated or deemed to be incorporated by reference in the Prospectus (other
than the financial statements and notes thereto, the financial statement
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, 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 in effect at the date of their respective filings.
(xiv) 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 will enable it to continue to meet the
requirements for qualification and taxation as a REIT.
(xv) The Operating Partnership and each Significant Subsidiary that
is a partnership or limited liability company under state law ("Subsidiary
Partnership") are properly classified as partnerships or disregarded entities,
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
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any Subsidiary Partnerships that have terminated, through the date of
termination of such Subsidiary Partnerships.
(xvi) Although the discussion set forth in the Prospectus under the
caption "Certain Federal Income Tax Considerations" does not purport to discuss
all possible United States federal income tax consequences of the purchase,
ownership, and disposition of the Securities, such discussion constitutes, in
all material respects, a fair and accurate summary under current law of the
material United States federal income tax consequences of the purchase,
ownership and disposition of the Securities by a holder who purchases such
Securities, subject to the qualifications set forth therein. The United States
federal income tax consequences of an investment in the Securities by an
investor will depend upon that holder's particular situation, and we express no
opinion as to the completeness of the discussion set forth in "Certain Federal
Income Tax Considerations" as applied to any particular holder.
Such counsel shall additionally state that such counsel has in its capacity as
counsel for the Operating Partnership, such counsel has participated in
conferences with officers and other representatives of the Operating
Partnership, the independent public accountants for the Operating Partnership,
the representatives of the Underwriters and counsel to the Underwriters during
which the contents of the Registration Statement and the Prospectus and related
matters were discussed. Although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
set forth in paragraphs (xii) and (xvi) above), on the basis of the information
that was developed in the course of the performance of the services referred to
above, considered in light of such counsel's understanding of applicable law,
nothing has come to such counsel's attention that caused it to believe that the
Registration Statement (other than the financial statements and notes thereto,
the financial statement schedule and other financial data included or
incorporated by reference therein or omitted therefrom or the Statement of
Eligibility on Form T-1, as to which such counsel need not express a belief), as
of the time it became effective under the 1933 Act, contained an untrue
statement of 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 (other than the financial statements and notes thereto, the
financial statement schedule and other financial data included or incorporated
by reference therein or omitted therefrom or the Statement of Eligibility on
Form T-1, as to which such counsel need not express a belief), as of the date of
the Prospectus or as of the date hereof, contained an untrue statement of
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.
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.
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