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EXHIBIT 1(a)
POST PROPERTIES, INC.
(a Georgia corporation)
Common Stock, Preferred Stock and Depositary Shares
PURCHASE AGREEMENT
September 26, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
250 Vesey Street
New York, New York 10281-1209
Ladies and Gentlemen:
Post Properties, Inc., a Georgia corporation (the "Company"), proposes to
issue and sell up to $300,000,000 aggregate initial public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), and (iii) shares of Preferred Stock represented by Depositary Shares
(the "Depositary Shares") in amounts, at prices and on terms to be determined
at the time of offering.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable articles of amendment (each, the "Articles of Amendment") relating
to such series of Preferred Stock. A series of Preferred Stock may be
represented by Depositary Shares that are evidenced by depositary receipts (the
"Depositary Receipts") issued pursuant to a deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary identified therein (the
"Depositary") and the registered holders of the Depositary Receipts issued
thereunder.
As used herein, "Securities" shall mean the Common Stock, Preferred Stock
or Depositary Shares, or any combination thereof, initially issuable by the
Company and "Underlying Securities" shall mean the Common Stock or Preferred
Stock issuable upon conversion of the Preferred Stock or Depositary Shares, as
applicable. 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 Company determines to make an offering of Securities through
you, or through an underwriting syndicate managed by you, the Company 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 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 number 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 number 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
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Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment and any delayed delivery
arrangements of the Initial Underwritten Securities and any other material
variable terms of the Initial Underwritten Securities (including, but not
limited to, current ratings, if applicable, designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements), as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the number
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 Company. 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.
The Company and Post Apartment Homes, L.P., a Georgia limited partnership
(the "Operating Partnership") have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-3555) 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. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. 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 Company 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 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 Company 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 pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
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The term "Subsidiary" as used herein means a corporation or a partnership
a majority of the outstanding equity interests of which is owned or controlled,
directly or indirectly, by the Company or the Operating Partnerships, 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 Company and the
Operating Partnership.
(a) The Company and the Operating Partnership, jointly and severally,
represent and warrant 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 Company and the Operating Partnership meet 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 Company, 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. 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 Company or the Operating Partnership, threatened
by the Commission or by the state securities authority of any
jurisdiction.
(2) The Registration Statement, at the time it 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. The Registration Statement, at the time the
Registration Statement 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 Company 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 Company elects to rely upon Rule 434 of the
1933 Act Regulations, the Company 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 Company in writing by any Underwriter through you expressly for
use in the Registration Statement or the Prospectus. If a Rule
462(b) Registration Statement is required in connection with the
offering and sale of the Underwritten Securities, the Company 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 as originally filed 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 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.
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(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 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) Price Waterhouse LLP, 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
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
(actual and, if any, pro forma) included in the Prospectus under
the captions "Ratios of Earnings to Fixed Charges" 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 Company, 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
Company, the Operating Partnership and their 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 Company, the
Operating Partnership or their Subsidiaries (the "Properties") has
occurred that
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is material to the Company, the Operating Partnership and their
Subsidiaries considered as one enterprise; (C) there have been no
transactions entered into by the Company, the Operating Partnership
or any Subsidiary, other than those arising in the ordinary course
of business, which are material with respect to the Company, the
Operating Partnership and their Subsidiaries considered as one
enterprise or that would result, upon consummation, in any material
inaccuracy in the representations contained in Section 1(a)(6)
above; (D) neither the Company, the Operating Partnership nor any
Subsidiary has incurred any material obligation or liability,
direct, contingent or otherwise; and (E) there has been no material
change in the short-term debt or long-term debt of the Company or
the Operating Partnership.
(8) The Company has been duly organized and is validly
existing as a corporation in good standing under the Georgia
Business Corporation Code with corporate power and authority to
own, lease and operate its properties, to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement, the applicable Terms Agreement,
any Deposit Agreement, the Delayed Delivery Contracts (as defined
herein), if any and the other agreements to which it is a party.
The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in the
State of Florida, and the Commonwealth of Virginia and in each
other jurisdiction and each other 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) 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 the
State of Florida and the Commonwealth of Virginia and in each
other 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.
(10) Each of the 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. Each of the 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 or
register would not have a Material Adverse Effect.
(11) The capitalization of the Company is as set forth in the
Prospectus (except for subsequent issuances thereof, if any,
contemplated under this Agreement, pursuant to employee benefit
plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
Such shares of capital stock have been duly authorized and validly
issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock were issued in violation of
preemptive or other similar rights arising by operation of law,
under the charter and by-laws of the Company or under any agreement
to which the Company, the Operating Partnership or any of their
subsidiaries is a party, or otherwise.
(12) The capitalization of the Operating Partnership is as set
forth in the Prospectus and all of the outstanding partnership
interests in the Operating Partnership have been duly authorized
and validly issued and the capital contributions with respect
thereto have been made in full; and
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the partnership interests owned by the Company are owned in the
percentage amount set forth in the Prospectus free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. The Company is the sole general partner of the Operating
Partnership.
(13) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each Subsidiary
have been validly issued and fully paid and are owned by the
Company, the Operating Partnership, another 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, 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. The Operating
Partnership owns no direct or indirect equity interest in any
entity other than its Subsidiaries.
(14) Except for transactions described in the Prospectus and
transactions in connection with stock andOperating Partnership
interests (the "Unit") option and dividend reinvestment plans and
exchanges of Units, there are no outstanding securities convertible
into or exchangeable for any capital stock of the Company and no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for such shares, Units or other
securities of the Company, the Operating Partnership or any of
their subsidiaries.
(15) Each of the Company and the Operating Partnership has
full power and authority to enter into and perform its obligations
under this Agreement, the applicable Terms Agreement, the Deposit
Agreement, if applicable and the Delayed Delivery Contracts (as
defined in Section 2 hereof), if any and this Agreement has been,
and as of each Representation Date, the applicable Terms Agreement,
Deposit Agreement, if any, and the Delayed Delivery Contracts, if
any, will have been, duly authorized, executed and delivered by
each of the Company and the Operating Partnership and, assuming due
authorization and delivery by the other parties thereto, each is a
valid and binding agreement of the Company and the Operating
Partnership enforceable against the Company and 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.
(16) The Common Stock has been, or as of the date of the
applicable Terms Agreement will have been, duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered as provided herein and in the
applicable Terms Agreement, the Common Stock will be validly
issued, fully paid and non-assessable; the Preferred Stock has
been, or as of the date of the applicable Terms Agreement will have
been, duly authorized and classified and when Articles of Amendment
setting the terms of the Preferred Stock are duly executed and
filed for record with the Secretary of State of the State of
Georgia and the Preferred Stock is duly paid for, sold and issued,
and certificates therefor are duly executed, countersigned and
delivered as provided herein and in the applicable Terms Agreement
or any Delayed Delivery Contract, the Preferred Stock will be
validly issued, fully paid and non-assessable; when Depositary
Receipts evidencing any Depositary Shares are issued and delivered
against deposit of Preferred Stock and against payment for the
Depositary Shares pursuant to this Agreement, the Terms Agreement
relating to the Depositary Shares and the Deposit Agreement, the
Preferred Stock will be validly issued, fully paid and
non-assessable, and the Depositary Receipts will be legally issued
and will entitle the holders thereof to the rights specified in the
Depositary Receipts and the Deposit Agreement; the Preferred Stock,
if applicable, conforms to the Articles of Amendment; the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement conform, in all material respects, to the descriptions
thereof contained in the Prospectus; and the issuance of the
Underwritten Securities is not subject to preemptive or similar
rights.
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(17) Before the Closing Time for any Depositary Shares, the
Deposit Agreement will be duly authorized and executed by the
Company, and assuming due authorization, execution and delivery by
the Depositary, the Deposit Agreement will constitute a valid and
legally binding instrument of the Company enforceable against the
Company 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.
(18) If applicable, the Common Stock issuable upon conversion
of any of the Preferred Stock or the Depositary Shares have been,
or as of the date of such Terms Agreement will have been, duly and
validly authorized and reserved for issuance by the Company upon
such conversion by all necessary action and such shares, when
issued upon such conversion, will be duly and validly issued, fully
paid and non-assessable and the issuance of such shares upon such
conversion will not be subject to preemptive or other similar
rights arising by operation of law, under the charter and by-laws
of the Company or under any agreement to which the Company or any
of its subsidiaries is a party, or otherwise. The Common Stock
issuable upon conversion of any of the Preferred Stock or
Depositary Shares will conform in all material respects to the
descriptions thereof in the Prospectus.
(19) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and each applicable Deposit Agreement,
as of the date of the Prospectus, and any Underlying Securities,
when issued and delivered in accordance with the terms of the
related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(20) Neither the Company, the Operating Partnership nor any of
their 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 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 would not result in a Material
Adverse Effect. The execution, delivery and performance of this
Agreement or the applicable Terms Agreement or any Deposit
Agreement 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 Company and 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
Company, the Operating Partnership or any of their 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 Company, the Operating Partnership or any
of their 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 Company, 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
Company, the Operating Partnership or any
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Subsidiary or any of their assets, properties or operations. 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 Company, the Operating
Partnership or any Subsidiary.
(21) No labor dispute with the employees of the Company, the
Operating Partnership or any Subsidiary exists or, to the knowledge
of the Company and the Operating Partnership, is imminent, which
may result in a Material Adverse Effect.
(22) 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 Company or the Operating
Partnership threatened, against or affecting the Company, 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 might result in a Material
Adverse Effect, or which might materially and adversely affect the
consummation of this Agreement or the applicable Terms Agreement or
any Deposit Agreement or the Delayed Delivery Contracts or the
transactions contemplated herein or therein. There is no pending
legal or governmental proceedings to which the Company, 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.
(23) 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.
(24) No authorization, approval or consent of any court or
governmental authority or agency is necessary or required for the
performance by the Company and the Operating Partnership of their
obligations under this Agreement or the applicable Terms Agreement
or in connection with the transactions contemplated under this
Agreement, such Terms Agreement or any Deposit Agreement, except
such as have been already obtained or as may be required under the
1933 Act, the 1933 Act Regulations or state securities or real
estate syndication laws.
(25) The Company, the Operating Partnership and their
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 Company, the Operating Partnership nor any of their
Subsidiaries has received any 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 Company, the Operating
Partnership or any of their 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.
(26) Each of the Company, the Operating Partnership and their
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 result in a Material
Adverse Effect. Neither the Company, the Operating Partnership nor
any of their Subsidiaries has received any notice of proceedings
relating
- 8 -
9
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, would result in a Material Adverse
Effect.
(27) (A) The Company and the Operating Partnership have good
and marketable fee simple title to the land underlying the
Properties (or, in the case of the Property known as "Post
Renaissance," a good and marketable leasehold interest in the land
underlying such Property) and good and marketable title to the
improvements thereon and 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 existing mortgages on
such Properties, 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 lines and facilities serving one or
more of such Properties by the cable television 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 Company and the Operating
Partnership lease the land on which the Property known as "Post
Renaissance" is located is in full force and effect, and the
Company and the Operating Partnership are not in default in respect
of any of the terms or provisions of such lease and the Company and
the Operating Partnership have not received notice of the assertion
of any claim by anyone adverse to the Company's or the Operating
Partnership's rights as lessee under such lease, or affecting or
questioning the Company's or the Operating Partnership's right to
the continued possession or use of the Property under such lease or
of a default under 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 Company and the Operating
Partnership or any Subsidiary which are required to be disclosed in
the Prospectus are disclosed therein; (D) none of the Company and
the Operating Partnership or any tenant of any of the Properties is
in default under any of the leases pursuant to which the Company
and the Operating Partnership, as lessor, leases its Property (and
the Company and the Operating Partnership do 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) 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 the aggregate have a Material Adverse Effect; (G) the Company
and the Operating Partnership do 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," the Company and the Operating
Partnership 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.
(28) The Company and the Operating Partnership are 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").
-9-
10
(29) Except as disclosed in the Prospectus, (A) each Property,
including, without limitation, the Environment (as defined below)
at 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 have any Material Adverse Effect; (B) none of the
Company, the Operating Partnership or 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 Company or the Operating Partnership, any property
adjacent to any Property that could result in the occurrence of
material liabilities under, or any material 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 environmental
hazard to any property, person or entity; (C) none of the Company,
the Operating Partnership or 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) none of the
Company, the Operating Partnership or 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; (E) none of the Company, the Operating
Partnership or 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; and (F) no Property (1) is included or to the
knowledge of the Company, 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 Company, 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, 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. Section
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. Section
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act,
as amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act,
as amended (42 U.S.C. Section 7401, et seq.), the Clean Water Act,
as amended (33 U.S.C. Section 1251, et seq.), the Occupational
Safety and Health Act of 1970, as amended (15 U.S.C. Section 2601,
et seq.),
- 10 -
11
the Toxic Substances Control Act, as amended (29 U.S.C. Section
651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 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 Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(30) Each of the Company, the Operating Partnership and their
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.
(31) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT for
its taxable years ending December 31, 1993, 1994 and 1995, and its
current organization and method of operation should enable it to
continue to meet the requirements for qualification and taxation as
a REIT.
(32) 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 hereoft, or, in the case of any Subsidiary
Partnerships that have terminated, through the date of terminsation
of such Subsidiary Partnerships.
(33) Each of the Company, the Operating Partnership and their
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.
(34) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the
applicable Closing Time. If so stated in the applicable Prospectus
Supplement, as of the applicable Representation Date, the Preferred
Stock will have been approved for listing on the New York Stock
Exchange upon official notice of issuance.
- 11 -
12
(35) Unless otherwise agreed by you, the Preferred Stock will
have an investment grade rating from one or more nationally
recognized statistical rating organizations at the Representation
Date and at the applicable Closing Time.
(b) Any certificate signed by any officer of the Company, the Operating
Partnership or 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 Company and 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 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 Company
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 number 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 dividends or distributions declared by the Company
or 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 Company setting forth
the number 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 Company. 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 number of Option Underwritten Securities then being
purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities, subject
to such adjustments as you in your discretion shall make to eliminate any sales
or purchases of a fractional number of 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
Company, at 9:00 a.m. (Eastern time) on the fourth business day (or the third
business day if required under Rule 15c6-1 of the 1934 Act, or 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 Company (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 Company, on the relevant Date of Delivery as specified in
the notice from you to the Company or the Operating Partnership.
Payment shall be made to the Company 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 Company against delivery to you for the respective
accounts of the Underwriters of the Underwritten Securities to be purchased by
them. It is understood
- 12 -
13
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, or, if applicable, Depositary Receipts
evidencing the Depositary Shares, 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.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Company will
enter into Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Company as provided below, but not for an
aggregate number of Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility
for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the applicable
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Operating Partnership. Each
of the Company and 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 Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms
not otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the
Underwriters participating in the offering and the number 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
Company, the initial public offering price, if any, the selling
concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company
deem appropriate in
- 13 -
14
connection with the offering of the Underwritten Securities; and
the Company 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 became 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 Company 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 Company 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 Company 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 Company 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 Company has furnished or will deliver to you and
counsel for the Underwriters, without charge, as many signed 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 copies of all
consents and certificates of experts, and will also deliver to you
without charge, as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto
(without exhibits) 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 Company will deliver to each Underwriter, without
charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company and the
Operating Partnership hereby consent to the use of such copies for
purposes permitted by the 1933 Act. The Company 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
- 14 -
15
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(f) The Company 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 Company, 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 Company 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 Company will furnish to the
Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(g) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Underwritten Securities and any
related Underlying 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 Company 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 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 or any related
Underlying Securities have been so qualified, the Company 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 or any related Underlying 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 Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement.
(i) If the applicable Terms Agreement specifies that any
related Underlying Securities include Common Stock or Preferred
Stock, the Company shall reserve and keep available at all times,
free of preemptive or other similar rights, a sufficient number of
shares of Common Stock and/or Preferred Stock, as applicable, for
the purpose of enabling the Company to satisfy any obligations to
issue such Underlying Securities upon conversion of the Preferred
Stock or Depositary Shares, as applicable.
(j) The Company 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."
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16
(k) The Company will file with the New York Stock Exchange,
Inc. all documents and notices required by the New York Stock
Exchange, Inc. of companies that have securities listed in such
exchange and, to the extent the Preferred Stock or Common Stock are
listed on the New York Stock Exchange, Inc., the Company will use
its best efforts to maintain the listing of any such Underwritten
Securities on the New York Stock Exchange, Inc.
(l) The Company and 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 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) or, if such Terms Agreement relates to
Underwritten Securities that are convertible into Common Stock, any
Common Stock or any security convertible into Common Stock (except
for Common Stock issued pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans, or employee
and trustee share options plans), except as may otherwise be
provided in the applicable Terms Agreement.
(m) The Company, 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.
(n) On or prior to the Closing Time, the Company will cause
Articles of Amendment relating to the Preferred Stock or Preferred
Stock represented by Depositary Shares, if any, to be filed for
record with the Secretary of State of the State of Georgia in
accordance with the Georgia Business Corporation Code.
(o) The Company will continue to elect to qualify as a "real
estate investment trust" under the Code, and will use its best
efforts to meet the requirements to continue to qualify as a "real
estate investment trust" under the Code.
(p) If requested by you, the Company will use its best efforts
to cause each of the executive officers and directors of the
Company to enter into lock-up agreements in form and substance
satisfactory to the Underwriters, and the Company acknowledges that
the Underwriters are intended third party beneficiaries of such
agreements.
(q) Except for the authorization of actions permitted to be
taken by the Underwriters as contemplated herein or in the
Prospectus, the Company will not (i) take, directly or indirectly,
any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Underwritten Securities, (ii)
sell, bid for or purchase the Underwritten Securities or pay any
person any compensation for soliciting purchases of the
Underwritten Securities or (iii) pay or agree to pay to any person
any compensation for soliciting another to purchase any other
securities of the Company.
(r) From the date hereof until five years after the Closing
Time, the Company and the Operating Partnership shall furnish to
you and your counsel, promptly upon their becoming available,
copies of any document filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act or any securities exchange.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement or any Deposit Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and
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17
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, any Deposit Agreement, and such
other documents as may be required in connection with the offering, purchase,
sale and delivery of the Underwritten Securities or any related Underlying
Securities to the Underwriters, (iii) the preparation, issuance and delivery of
the Underwritten Securities and any related Underlying Securities, any
certificates for the Underwritten Securities or such Underlying Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, to the
Underwriters, including capital duties, stamp duties, and stock transfer taxes,
if any, (iv) the reasonable fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), (v) the qualification of the Underwritten Securities and any
related Underlying 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
and any related Underlying Securities, if applicable, (viii) the fees and
expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, on any national
securities 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 costs and
expenses of the deposit of Preferred Stock under any Deposit Agreement in
exchange for Depositary Receipts, including the charges of the Depositary in
connection therewith and (xii) the fees and expenses of the Depositary,
including the fees and disbursements of counsel for the Depositary.
If the applicable Terms Agreement is terminated by you in accordance with
the provisions of Section 5 or Section 9(b)(i) hereof, the Company 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 Company and the Operating Partnership contained herein, to
the accuracy of the statements of officers of the Company, the Operating
Partnership or any Subsidiary made in any certificate delivered pursuant to the
provisions hereof, to the performance by the Company and the Operating
Partnership of all of their covenants and other obligations hereunder, and to
the following further conditions:
(a) 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 and any related Underlying
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 Company 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 any Preferred
Stock of the Company or 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 Preferred Stock of the Company or 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
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18
attention any facts that would cause you to believe that the Prospectus,
together with the applicable Prospectus Supplement, at the 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, 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 Company is a corporation duly formed and is validly
existing and in good standing under the laws of the State of
Georgia. The Company has the power and authority to own, lease and
operate its properties and conduct the business in which it is
engaged, and, to counsel's knowledge, is duly qualified as a
foreign corporation in the jurisdictions set forth in an exhibit to
the opinion.
(ii) 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.
(iii) Each of the Post Services, Inc., Post Asset Management,
Inc., Post Landscape Services, Inc. and RAM Partners, Inc. (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 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 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 shares of capital stock of Post
Services, Inc. is as described in the Prospectus. All of the
issued and outstanding shares of capital stock of each of the other
Significant Subsidiaries are owned by Post Services Inc.
(iv) The Underwritten Securities and, if applicable, the
deposit of the Preferred Stock in accordance with the provisions of
a Deposit Agreement, have been duly and validly authorized by all
necessary action, and when executed, authenticated and delivered in
accordance with this Agreement against payment of the consideration
set forth in the applicable Terms Agreement or the Delayed Delivery
Contracts, if any, will be validly issued, fully paid and
non-assessable and will be valid and legally binding obligations of
the Company, enforceable against the Company in accordance with
their terms. The terms of the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform in all material
respects to the description of the Underwritten Securities set
forth under "Description of Common Stock" in the Prospectus and
under "Description of Common Stock," "Description of Preferred
Stock," "Description of Depositary Shares," or other similar
caption, as the case may be, in the Prospectus Supplement. The
issuance of the Underwritten Securities is not subject to any
statutory preemptive rights or, to counsel's knowledge, any
contractual rights to subscribe for more shares. If applicable,
the form of certificate used to evidence the Underwritten
Securities complies with all applicable statutory requirements.
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19
(v) If applicable, the Common Stock issuable upon conversion
of any of the Preferred Stock or Depositary Shares have been duly
authorized and reserved for issuance upon such conversion by all
necessary action and such shares, when issued upon such conversion
will be validly issued and will be fully paid and non-assessable,
and the issuance of such shares upon such conversion will not be
subject to any statutory preemptive rights or, to counsel's
knowledge, any contractual rights to subscribe for more shares; and
the Common Stock issuable upon conversion of the Preferred Stock or
the Depositary Shares conform in all material respects to the
descriptions thereof in the Prospectus.
(vi) The applicable Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and (assuming due
authorization, execution and delivery of the Deposit Agreement by
the Depositary) constitutes a valid and binding obligation of the
Company 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, (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; and the Deposit Agreement, if any, conforms in all
material respects to all statements relating thereto contained in
the Prospectus.
(vii) Each of this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, has been duly and
validly authorized, executed and delivered by the Company and the
Operating Partnership, and each of the Company and the Operating
Partnership has the power and authority to perform its obligations
hereunder and thereunder.
(viii) The execution and delivery of this Agreement and the
applicable Terms Agreement by each of the Company and the Operating
Partnership, and the performance by each of the Company and 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: (1) to the
knowledge of counsel, any material contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement
or other material instrument or agreement 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;
(2) the certificate of limited partnership or partnership agreement
of the Operating Partnership; or (3) any applicable law, rule,
order, administrative regulation or administrative or court decree,
except that no opinion is expressed under this clause (3) as to
this Agreement or the Terms Agreement with respect to federal,
state or foreign securities laws.
(ix) The Registration Statement is effective under the 1933
Act and, to counsel's knowledge based solely on 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.
(x) 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 Company and
the Operating Partnership is required for the performance by each
of the Company and the Operating Partnership of its obligations
under this Agreement and the applicable Terms Agreement, except
such as may be required under the 1933 Act and the securities,
Blue Sky or real estate syndication laws of various states in
connection with the offer and sale of the Underwritten Securities.
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20
(xi) 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 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 Subsidiary or any 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 Company, the
Operating Partnership or any 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.
(xii) None of the Company, the Operating Partnership or any
Subsidiary is required to be registered as an investment company
under the 1940 Act.
(xiii) The information (A) in the Prospectus under the heading
"Description of Common Stock," "Description of Preferred Stock" and
"Description of Depository Shares" and (B) the discussion in the
Prospectus under the heading "Federal Income Tax Considerations"
and in the Prospectus Supplement under the headings "Taxation of
Common Stock Holders," "Taxation of Holders of Preferred Stock," or
other similar caption, as the case may be, 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 to
be disclosed therein.
(xiv) At the time the Registration Statement became effective
and at the Representation Date, the Registration Statement and
Prospectus (except for financial statements and schedules included
therein, 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 1933 Act Regulations.
(xv) 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 schedules and other
financial information 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.
(xvi) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT for
its taxable years ending December 31, 1993, 1994 and 1995, and its
current organization and method of operation should enable it to
continue to meet the requirements for qualification as a REIT.
(xvii) 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
Partnership that have terminated, through the date of termination
of such Subsidiary Partnerships.
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21
(xviii) To the knowledge of counsel, except as described in
the Prospectus, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable
for, or agreements or understandings with respect to the sale or
issuance of any shares of Common Stock or capital stock of or other
equity interest in the Company or any subsidiary of the Company.
(xix) The Articles of Amendment relating to the Preferred
Stock and the Depositary Shares, if any, have been filed for record
with the Secretary of State of the State of Georgia pursuant to the
Georgia Business Corporation Code and the number of Preferred Stock
and the title, par value, liquidation preference, ranking, dividend
rate or rates (or method of calculation), dividend payment dates,
redemption or sinking fund requirements, conversion provisions and
other terms of the Preferred Stock have been set forth therein.
(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 Common Stock"), 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, as to which such counsel need not
express any view), as of the time it became effective under the 1933 Act
(and as of the time of filing of the Company'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 Sections 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 Company
and (B) may rely as to the qualification and good standing of each of the
Company, 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 the Company and the
Operating Partnership, and the chief financial officer or chief accounting
officer of the Company, 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 Company and the
Operating Partnership have complied with all agreements and satisfied all
conditions on their 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 initiated or threatened by the Commission.
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22
(f) At the time of the execution of the applicable Terms Agreement,
you shall have received from Price Waterhouse 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 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 Price Waterhouse
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 Company 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 Company or 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
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23
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 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) At Closing Time, if applicable, the Underwritten Securities
shall have been approved for listing on the NYSE, subject only to official
notice of issuance, if and as specified in the applicable Terms Agreement.
(j) 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.
(k) On the date of the applicable Terms Agreement, you shall have
received, in form and substance satisfactory to it, each lock-up agreement, if
any, specified in such Terms Agreement as being required to be delivered by the
persons listed therein.
(l) In the event that the Underwriters are granted an
over-allotment option by the Company or 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 Company and 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 the Company and the chief
financial officer or chief accounting officer of the Company,
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 L.L.P., 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 Price Waterhouse 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) hereof, except that the "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.
(m) 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
Company or 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.
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24
(n) 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 Company
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 1, 6 and 7 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Each of the Company and the Operating Partnership agrees, jointly and
severally, 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 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 Company and
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 Company or 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
Company and the Operating Partnership, its directors, officers, employees and
affiliates, and each person, if any, who controls the Company 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), including the
Rule 430A information and the Rule 434
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25
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
Company or 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 Company. 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.
(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 part 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 Company and 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 Company and 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 Company and 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 Company, 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.
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26
The relative fault of the Company and the Operating Partnership, on the
one hand, and the Underwriters, on the other hands 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 to information supplied by the Company and 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 Company and 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 director of the Company, each officer of the Company and the Operating
Partnership who signed the Registration Statement, and each person, if any, who
controls the Company 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
Company and the Operating Partnership. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number or aggregate principal amount, as the case may be, 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
the Company or the Operating Partnership submitted pursuant hereto or thereto
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 the Company 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 Company and 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
Company, 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
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27
change in the financial markets in the United States 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 order of the Commission or any
other governmental authority, (iv) a banking moratorium has been declared by
either Federal or New York authorities, or (v) if the rating assigned by any
nationally recognized statistical rating organization to any Preferred Stock of
the Company as of the date of the applicable Terms Agreement shall have been
lowered since such 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 1, 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 number of Defaulted Securities does not exceed 10%
of the number 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 number of Defaulted Securities exceeds 10% of the
number 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 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 Company 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.
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28
Notices to the Underwriters shall be directed to Merrill Lynch at Merrill Lynch
World Headquarters, World Financial Center, North Tower, New York, New York
10281-1201, attention of Tjarda van S. Clagett; and notices to the Company and
the Operating Partnership shall be directed to it at 3350 Cumberland Circle,
N.W., Suite 2200, Atlanta, Georgia 30339, attention of John T. Glover,
President.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, and 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
and the Company 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 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 Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE 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.
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29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
POST PROPERTIES, INC., for itself and, as
the general partner, on behalf of POST
APARTMENT HOMES, L.P.
By: /s/ John T. Glover
-------------------------------------------
Name: John T. Glover
Title: President
CONFIRMED AND ACCEPTED
as of the date first
above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ John P. Case
---------------------------------------
Name: John P. Case
Title: Vice President
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Exhibit A
POST PROPERTIES, INC.
a Georgia corporation
Common Stock, Preferred Stock and Depositary Shares
TERMS AGREEMENT
To: Post Properties, Inc.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, GA 30339
Ladies and Gentlemen:
We understand that Post Properties, Inc., a Georgia corporation (the
"Company"), proposes to issue and sell [_____ shares of its common stock, par
value $.01 per share (the "Common Stock")] [_____ shares of its preferred
stock, par value $.01 per share (the "Preferred Stock")] [in the form of _____
depositary shares (the "Depositary Shares") each representing ____ of a share
of Preferred Stock] (such securities also being hereinafter referred to as the
"Initial Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below
(the "Underwriters")] offer to purchase, severally and not jointly, the number
of Underwritten Securities [opposite their names set forth below at the
purchase price set forth below, and a proportionate share of Option
Underwritten Securities set forth below, to the extent any are purchased.
Number
Underwriter of Initial Underwritten Securities
Total [$]
31
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional Amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
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32
All of the provisions contained in the document attached as Annex I
entitled "POST PROPERTIES, INC. Common Stock, Preferred Stock and Depositary
Shares--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.
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 PROPERTIES, INC.
By:
----------------------------------------
Name:
Title:
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