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EXHIBIT 1(a)
POST APARTMENT HOMES, L.P.
(a Georgia limited partnership)
Debt Securities
PURCHASE AGREEMENT
September 25, 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 Apartment Homes, L.P., a Georgia limited partnership (the
"Operating Partnership"), proposes to issue and sell up to $300,000,000
aggregate initial public offering price of its unsecured non-convertible debt
securities (the "Securities") in principal amounts, at prices and on terms to
be determined at the time of offering. The Securities will be issued in one or
more series under one or more indentures (each, an "Indenture"), between the
Operating Partnership and a trustee (a "Trustee"). Each series of Securities
may vary, as applicable, as to title, aggregate principal amount, rank,
interest rate or formula and timing of payments thereof, stated maturity date,
redemption and/or repayment provisions, sinking fund requirements and any other
variable terms established by or pursuant to the applicable Indenture. Unless
the context otherwise requires, as used herein, "you" and "your" shall mean the
parties to whom this Agreement is addressed together with the other parties, if
any, identified in the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Operating Partnership determines to make an
offering of Securities through you, or through an underwriting syndicate
managed by you, the Operating Partnership will enter into an agreement (each a
"Terms Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, you and such other
underwriters, if any, selected by you (the "Underwriters," which term shall
include you, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of
Underwritten Securities shall specify the aggregate principal amount of
Underwritten Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than you acting as co-manager in connection with such
offering, the aggregate principal amount of Initial Underwritten Securities
which each such
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Underwriter severally agrees to purchase, whether such offering is on a fixed
or variable price basis and, if on a fixed price basis, the initial offering
price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment and any 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, designations,
denominations, interest rates or formulas, interest payment dates, maturity
dates and repayment provisions). In addition, if applicable, such Terms
Agreement shall specify whether the Operating Partnership has agreed to grant
to the Underwriters an option to purchase additional Securities to cover over-
allotments, if any, and the aggregate principal amount of Underwritten
Securities subject to such option (the "Option Underwritten Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option Underwritten
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Operating Partnership. Each
offering of Underwritten Securities through you as sole Underwriter or through
an underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and such Terms Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of such Underwritten Securities.
Post Properties, Inc., a Georgia corporation (the "Company"),
and the Operating Partnership have filed with the Securities and Exchange
Commission (the "Commission") 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 and an Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement and the prospectus constituting a part
thereof (including in each case the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations, and each
prospectus supplement relating to the offering of Underwritten Securities
pursuant to Rule 430A or Rule 415 of the 1933 Act Regulations (the "Prospectus
Supplement"), including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, that if any revised Prospectus shall be
provided to you by the Operating Partnership for use in connection with the
offering of Underwritten Securities which differs from the Prospectus on file
at the Commission at the time the Registration Statement became effective
(whether or not such revised prospectus is required to be filed by the Company
or the Operating Partnership pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to each such revised prospectus
from and after the time it is first provided to you for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to
which it relates. Any registration
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statement (including any supplement thereto or information which is deemed part
thereof) filed by the Operating Partnership under Rule 462(b) of the 1933 Act
Regulations (a "Rule 462(b) Registration Statement") shall be deemed to be part
of the Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in the
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be part of
the Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or any
amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("EDGAR").
The term "Subsidiary" as used herein means a corporation or a
partnership a majority of the outstanding equity interests, as the case may be,
of which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other Subsidiaries
of the Company or the Operating Partnership.
SECTION 1. Representations and Warranties of the Operating
Partnership.
(a) The Operating Partnership represents and warrants to you,
as of the date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof, as of the Closing Time (as
defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, a "Representation Date"), as follows:
(1) The Operating Partnership meets the
requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement, the Prospectus and any
Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
under the 1933 Act and no proceeding for that purpose has been
instituted or is pending or, to the knowledge of the Operating
Partnership, is contemplated or threatened by the Commission
or by the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional
information has been complied with. In addition, each
Indenture has been duly qualified under the 1939 Act. No
order preventing or suspending the use of the Prospectus has
been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Operating Partnership,
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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 and the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"). The Registration Statement, at the
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 Operating Partnership
for use in connection with an offering of Underwritten
Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement became
effective, in which case at the time it is first provided to
you for such use) did not and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
If the Operating Partnership elects to rely upon Rule 434 of
the 1933 Act Regulations, the Operating Partnership will
comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Operating Partnership in writing by any Underwriter through
you expressly for use in the Registration Statement or the
Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification on Form T-1 under the 1939 Act (the "Statement
of Eligibility") of the Trustee under the Indenture. If a
Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Underwritten Securities, the
Operating Partnership has complied or will comply with the
requirements of Rule 111 of the 1933 Act Regulations relating
to the payment of filing fees therefor.
(3) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement 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
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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 Operating Partnership and its
Subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of
business; (B) no casualty loss or condemnation or other
adverse event with respect to any of the interests held
directly or indirectly in any of the real properties owned,
directly or indirectly, by the Operating Partnership or its
Subsidiaries (the "Properties") has occurred that is material
to the Operating Partnership and its Subsidiaries considered
as one enterprise; (C) there have been no transactions entered
into by the Operating Partnership or any Subsidiary, other
than those arising in the ordinary course of business, which
are material with respect to the Operating Partnership and its
Subsidiaries considered as one enterprise or that would
result, upon consummation, in any material inaccuracy in the
representations contained in Section 1(a)(6) above; (D)
neither the Operating Partnership nor any Subsidiary has
incurred any material obligation or liability, direct,
contingent or otherwise; and (E) there has been no material
change in the short-term debt or long-term debt of the
Operating Partnership.
(8) The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good
standing under the Georgia Revised Uniform Limited Partnership
Act (the "Georgia Act") with partnership power and authority
to own, lease and operate its properties, to conduct the
business in which it is engaged and to enter into and perform
its obligations under this Agreement, the Terms Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in the State of Florida,
the Commonwealth of Virginia 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) 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
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Prospectus and to enter into and perform its obligations under
any agreements to which it is a party. 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 would not have a Material Adverse Effect.
(10) 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
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.
(11) 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 Operating Partnership, the Company, 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.
(12) Except for transactions 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 capital stock or
partnership or other equity interest in the Operating
Partnership or any Subsidiary.
(13) The Operating Partnership has full power and
authority to enter into and perform its obligations under this
Agreement, the applicable Terms Agreement 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 and the Delayed Delivery
Contracts, if any, will have been, duly authorized, executed
and delivered by the Operating Partnership and, assuming due
authorization, execution and delivery by the other parties
thereto, each is a valid and binding agreement of the
Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally,
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(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.
(14) The Indenture (A) has been duly and validly
authorized, and when executed and delivered by the Operating
Partnership, and assuming due authorization, execution and
delivery by the trustee, will constitute a valid and binding
obligation of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms, except
as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(B) conforms in all material respects to the description
thereof in the Prospectus.
(15) The Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly
authorized by the Operating Partnership for issuance and sale
pursuant to this Agreement, such Terms Agreement and any
Delayed Delivery Contract. Such Underwritten Securities, when
issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the
Operating Partnership, entitled to the benefits of the
Indenture enforceable against the Operating Partnership in
accordance with its terms, except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
Such Underwritten Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture. Upon payment of the
purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive
good, valid and marketable title to such Underwritten
Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities.
The terms of such applicable Underwritten Securities conform
in all material respects to all statements and descriptions
related thereto contained in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with
all unsecured and unsubordinated indebtedness of the Operating
Partnership that is outstanding on the Delivery Date or that
may be incurred thereafter, except that such Underwritten
Securities will be effectively subordinated to the prior
claims of each secured mortgage lender to any specific
Property which secures such lender's mortgage.
(16) Neither the Operating Partnership nor any of
its Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, partnership
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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 each applicable Indenture
and the transactions contemplated herein or therein, including
the issuance, sale and delivery of the Underwritten Securities
and the use of the proceeds from the sale of the Underwritten
Securities as described in the Prospectus under the caption
"Use of Proceeds," and compliance by the Operating Partnership
with its obligations hereunder and thereunder, (A) do not and
will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the
Operating Partnership or any of its Subsidiaries pursuant to,
any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Operating Partnership or any of its
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of their properties or assets is
subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or
partnership agreement of the Operating Partnership or any
Subsidiary, as the case may be, or (ii) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of
any government, government agency or court, domestic or
foreign, having jurisdiction over the Operating Partnership or
any Subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of
such indebtedness by the Operating Partnership or any
subsidiary.
(17) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists
or, to the knowledge of the Operating Partnership, is
imminent, which may result in a Material Adverse Effect.
(18) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Operating
Partnership threatened against or affecting the Operating
Partnership, any Subsidiary thereof, any Property or any
officer or director of the foregoing, which is required to be
disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might result in a
Material Adverse Effect, or which might materially and
adversely affect the consummation of this Agreement, the
applicable Terms Agreement or any applicable Indenture or any
Delayed Delivery Contracts or the transactions
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contemplated herein or therein. There is no pending legal or
governmental proceedings to which the Operating Partnership or
any Subsidiary is a party or of which any of their respective
assets or properties is subject which might result in a
Material Adverse Effect.
(19) 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.
(20) No authorization, approval or consent of any
court or governmental authority or agency is necessary or
required for the performance by the Operating Partnership of
its obligations under this Agreement or the applicable Terms
Agreement or in connection with the transactions contemplated
under this Agreement, such Terms Agreement or any applicable
Indenture, except such as have been already obtained or as may
be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities or real estate syndication
laws.
(21) The Operating Partnership and its Subsidiaries
own or possess, trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by
them, and neither the Operating Partnership nor any of its
Subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Operating
Partnership or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse
Effect.
(22) Each of the Operating Partnership and its
Subsidiaries has all permits, licenses, approvals, consents,
certificates and other authorizations of and from
(collectively, "Governmental Licenses") and has made all
declarations and filings with all appropriate federal, state,
local, foreign and other governmental authorities, all self
regulatory organizations and all courts and other tribunals
required for it to own, lease, license and use its properties
and assets and to conduct its business in the manner described
in the Registration Statement and the Prospectus, other than
such Governmental Licenses the absence of which, singly or in
the aggregate, could result in a Material Adverse Effect.
Neither the Operating Partnership nor any of its Subsidiaries
has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
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(23) (A) The Operating Partnership has 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 Operating Partnership leases the land on which
the Property known as "Post Renaissance" is located is in full
force and effect, and the Operating Partnership is not in
default in respect of any of the terms or provisions of such
lease and the Operating Partnership has not received notice of
the assertion of any claim by anyone adverse to the Operating
Partnership's rights as lessee under such lease, or affecting
or questioning 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 Operating
Partnership or any Subsidiary which are required to be
disclosed in the Prospectus are disclosed therein; (D) none of
the Operating Partnership or any tenant of any of the
Properties is in default under any of the leases pursuant to
which the Operating Partnership, as lessor, leases its
Property (and the Operating Partnership does not know of any
event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such
leases) other than such defaults that would not have a
Material Adverse Effect; (E) 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 Operating
Partnership does not have knowledge of any pending or
threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any
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12
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 Operating Partnership is the beneficiary
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.
(24) The Operating Partnership is not, and upon the
issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act"), or is or will become a
"holding company" or a "subsidiary company" of a "registered
holding company," as defined in the Public Utility Holding
Company Act of 1935, as amended.
(25) Except as disclosed in the Prospectus, (A)
each Property, including, without limitation, the Environment
(as defined below) associated with each Property, is free of
any Hazardous Substance (as defined below) in violation of any
Environmental Law (as defined below) applicable to the
Properties, except for any Hazardous Substance that would not
have any Material Adverse Effect; (B) neither the Operating
Partnership nor any Subsidiary has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in
violation of any Environmental Law applicable to such
Property, and no condition exists on, in or under any Property
or, to the knowledge of the Operating Partnership, any
property adjacent to any Property that could result in the
occurrence of 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) neither the Operating Partnership nor any
Subsidiary is engaged in or intends to engage in any
manufacturing or any similar operations at any Property that
(1) require the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides,
or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (D) neither the
Operating Partnership nor any Subsidiary has received any
notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to
Hazardous Substances on any Property or pertaining to other
property at which Hazardous Substances generated at any
Property have come to be located; (E) neither the Operating
Partnership nor any Subsidiary has received any notice from
any Governmental Authority (as defined below) claiming any
violation of any Environmental Law that is uncured or
unremediated as of the date hereof; and (F) no Property (1) is
included or, to the knowledge of the Operating
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13
Partnership or any Subsidiary, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency
(the "EPA") or on the Comprehensive Environmental Response,
Compensation, and Liability Information System database
maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion
on, any similar list of potentially contaminated sites
pursuant to any other applicable Environmental Law nor has the
Operating Partnership, or any subsidiary received any written
notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
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 Toxic Substances Control
Act, as amended (15 U.S.C. Section 2601 et seq.), the
Occupational Safety and Health Act of 1970, 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
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14
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.
(26) Each of the Operating Partnership and its
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in
which they are engaged.
(27) The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income
Security Act of 1974, as amended.
(28) The mortgages and deeds of trust encumbering
the properties and assets described in general in the
Prospectus are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the
Operating Partnership or any of its Subsidiaries; except as
disclosed in the Prospectus, none of the Operating Partnership
or any of its Subsidiaries holds participating interests in
such mortgages and deeds of trust.
(29) The partnership agreement of the Operating
Partnership (the "Operating Partnership Agreement") has been
duly authorized, executed and delivered by the parties thereto
and constitutes the valid agreement thereof, enforceable in
accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability; and the execution, delivery and
performance of the Operating Partnership Agreement did not, at
the time of execution and delivery, and does not constitute a
breach of, or default under any material contract, lease or
other instrument to which the Operating Partnership is a party
or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(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
hereof, or, in the case of any Subsidiary
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15
Partnerships that have terminated, through the date of
termination of such Subsidiary Partnershps.
(33) Each of the Company, the Operating Partnership
and its Subsidiaries has filed all federal, state, local and
foreign income tax returns which have been required to be
filed (except in any case in which the failure to file would
not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good
faith.
(b) Any certificate signed by any officer of the
Operating Partnership (or any officer of the Company), or of any Subsidiary,
and delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Operating Partnership to each Underwriter as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Operating Partnership may grant, if so provided in the applicable
Terms Agreement relating to the Initial Underwritten Securities, an option to
the Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security,
less an amount equal to any distributions declared by the Operating Partnership
and paid or payable on the Initial Underwritten Securities but not payable on
the Option Underwritten Securities. Such option, if granted, will expire 30
days or such lesser number of days as may be specified in the applicable Terms
Agreement after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Underwritten Securities upon
notice by you to the Operating Partnership, as the case may be, setting forth
the aggregate principal amount of Option Underwritten Securities as to which
the several Underwriters are then exercising the option and the time, date and
place of payment and delivery for such Option Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall
be determined by you, but shall not be later than seven full business days and
not be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Operating Partnership. If the
option is exercised as to all or any portion of the Option Underwritten
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16
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
aggregate principal amount of Initial Underwritten Securities, subject to such
adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of,
the Initial Underwritten Securities to be purchased by the Underwriters shall
be made at the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W.,
Washington, D.C. 20004, or at such other place as shall be agreed upon by you
and the Operating Partnership, at 10:00 a.m. (Eastern time) on the 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 Operating Partnership (each such time and
date of payment and delivery being herein called a "Closing Time"). In
addition, in the event that the Underwriters have exercised their option, if
any, to purchase any or all of the Option Underwritten Securities, payment of
the purchase price for, and delivery of such Option Underwritten Securities,
shall be made at the above-mentioned offices of Hogan & Hartson L.L.P., or at
such other place as shall be agreed upon by you and the Operating Partnership,
on the relevant Date of Delivery as specified in the notice from you to the
Operating Partnership.
Payment shall be made to the Operating Partnership, by wire
transfer or by certified or official bank check or checks drawn in Federal or
similar same-day funds payable to the order of the Operating Partnership, as
applicable, against delivery to you for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It is
understood that each Underwriter has authorized you, for its account, to accept
delivery of, receipt for, and make payment of the purchase price, for the
Underwritten Securities which it has severally agreed to purchase. You,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose check has not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) The Underwritten Securities shall be in such
authorized denominations and registered in such names as you may request in
writing at least two full business days prior to the applicable Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by you on or before the
first business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Underwritten
Securities from the Operating Partnership pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the form of Exhibit B
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17
hereto with such changes therein as the Operating Partnership may approve. As
compensation for arranging Delayed Delivery Contracts, the Operating
Partnership 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 Operating
Partnership will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount 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 Operating
Partnership as provided below, but not for an aggregate principal amount 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 Operating Partnership, at least three
business days prior to the applicable Closing Time, the names of any
institutional investors with which it is proposed that the Operating
Partnership will enter into Delayed Delivery Contracts and the principal amount
of Underwritten Securities to be purchased by each of them, and the Operating
Partnership 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 Operating Partnership and the principal
amount of Underwritten Securities to be covered by each such Delayed Delivery
Contract.
The principal amount of Underwritten Securities agreed to be
purchased by the several Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the principal amount of Underwritten Securities
covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a
written notice delivered by you to the Operating Partnership; provided,
however, that the total number or principal amount of Underwritten Securities
to be purchased by all Underwriters shall be the total principal amount of
Underwritten Securities covered by the applicable Terms Agreement, less the
principal amount of Underwritten Securities covered by Delayed Delivery
Contracts.
SECTION 3. Covenants of 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 Operating Partnership will prepare a
Prospectus Supplement setting forth the principal amount of
Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus or the Indenture
pursuant to which the Underwritten Securities are being
issued, the names of the Underwriters participating in the
offering and the principal amount of Underwritten Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are
to be purchased by the Underwriters from the Operating
Partnership, the initial
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18
public offering price, if any, the selling concession and
reallowance, if any, any delayed delivery arrangements, and
such other information as you and the Operating Partnership
deem appropriate in connection with the offering of the
Underwritten Securities; and the Operating Partnership will
promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the time period required by such Rule and
will furnish to the Underwriters named therein as many copies
of the Prospectus and such Prospectus Supplement as you shall
reasonably request. If, at the time that the Registration
Statement becomes effective, any information shall have been
omitted therefrom in reliance upon Rule 430A of the 1933 Act
Regulations, then immediately following execution of the
applicable Terms Agreement, the Operating Partnership will
prepare, and file or transmit for filing with the Commission
in accordance with such Rule 430A and Rule 424(b) of the 1933
Act Regulations, copies of an amended Prospectus or, if
required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended Prospectus),
including all information so omitted.
(b) The Operating Partnership will notify you
immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the Commission for filing of any
Prospectus Supplement or other supplement or amendment to the
Prospectus or any document to be filed pursuant to the 1934
Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Underwritten Securities or offering or sale in any
jurisdiction, or of any proceedings for any of such purposes;
and the Operating Partnership will make every reasonable
effort to prevent the issuance of any such stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection
with sales of the Underwritten Securities, the Operating
Partnership will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including
any filing under Rule 462(b) of the 1933 Act Regulations), any
Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, and will
furnish you with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to
which you or counsel for the Underwriters shall object.
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(d) The Operating Partnership 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 Operating Partnership will deliver to each
Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter may reasonably
request, and the Operating Partnership hereby consents to the
use of such copies for purposes permitted by the 1933 Act.
The Operating Partnership will furnish to each Underwriter,
without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus as such Underwriter
may reasonably request. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(f) The Operating Partnership will comply with the
1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this
Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934
Act to be delivered in connection with sales of the
Underwritten Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the
Operating Partnership, to amend or supplement the Prospectus
in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
light of the circumstances existing at the time it is
delivered to a purchaser not misleading, or if it shall be
necessary, in the reasonable opinion of either of such
counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Operating Partnership will promptly
prepare and file with the Commission such amendment or
supplement in form and substance reasonably satisfactory to
counsel for the Underwriters, whether by filing documents
pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such statement or omission or to make the
Registration
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20
Statement or the Prospectus comply with such requirements, and
the Operating Partnership will furnish to the Underwriters,
without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(g) The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities for offering and sale under the
applicable securities laws and real estate syndication laws of
such states and other jurisdictions (domestic or foreign) as
you may designate and to maintain such qualifications in
effect; provided, however, that the Operating Partnership
shall not be obligated to file any general consent service of
process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject
itself to taxation in respect to doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so
qualified, the Operating Partnership will file such statements
and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so
long as may be required for the distribution of the
Underwritten Securities.
(h) With respect to each sale of Underwritten
Securities, the Company and the Operating Partnership will
make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earning statement (in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a 12-month period beginning not later
than the first day of the Operating Partnership's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement.
(i) The Operating Partnership will use the net
proceeds received by it from the sale of the Underwritten
Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(j) The Operating Partnership will not, between
the date of the applicable Terms Agreement and the termination
of any trading restrictions or the applicable Closing Time,
whichever is later, with respect to the Underwritten
Securities covered thereby, without your prior written
consent, offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any debt securities of the
same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten
Securities which are to be sold pursuant to such Terms
Agreement).
(k) The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
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21
(l) 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.
(m) Except for the authorization of actions
permitted to be taken by the Underwriters as contemplated
herein or in the Prospectus, neither the Company nor the
Operating Partnership will (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 or
the Operating Partnership 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 or the Operating Partnership.
(n) 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.
(o) In respect to each offering of Debt
Securities, the Company will qualify an Indenture under the
1939 Act.
(p) The Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's
Corporation ("S&P"), Moody's Investors Service, Inc.
("Moody's") or any other nationally recognized statistical
rating organization to provide their respective credit ratings
of any Underwritten Securities, if applicable.
SECTION 4. Payment of Expenses. The Operating Partnership
will pay all expenses incident to the performance of its obligations under this
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto,
(ii) the preparation and delivery to the Underwriters of this Agreement, any
Terms Agreement, any Agreement among Underwriters, the Indentures, and such
other documents as may be required in connection with the offering, purchase,
sale and delivery of the Underwritten Securities to the Underwriters, (iii) the
preparation, issuance and delivery of the Underwritten Securities, (iv) the
reasonable fees and disbursements of the Operating Partnership's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the reasonable fees and disbursements of the Trustees,
and their respective counsel, (v) the qualification of the Underwritten
Securities under state securities laws and real estate syndication
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22
laws in accordance with the provisions of Section 3(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation, and delivery of
the Blue Sky Memorandum and any amendment thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, and the Prospectus and any amendments or supplements thereto, (vii) any
fees charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities on any national
exchange, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Underwritten Securities and any related Underlying
Securities, (x) the fees and expenses of any Underwriter acting in the capacity
of a "qualified independent underwriter" (as defined in Section 2710(c)(8) of
the Conduct Rules of the NASD), if applicable, (xi) the fees and expenses of
the Trustee, including the reasonable fees and disbursements of counsel for the
Trustee, in connection with the Indenture and the Underwritten Securities, and
(xii) the preparation, issuance and delivery to the Depository Trust Company
for credit to the accounts of the respective Underwriters of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i) hereof, the
Operating Partnership shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy as of the date hereof and of Closing Time of the
representations and warranties of the Operating Partnership contained herein,
to the accuracy of the statements of officers of the Company, the Operating
Partnership or any Subsidiary made in any certificate delivered pursuant to the
provisions hereof, to the performance by the Operating Partnership of all of
its covenants and other obligations hereunder, and to the following further
conditions:
(a) (i) The Registration Statement, including
any Rule 462(b) Registration Statement, shall have become effective
under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters; (ii) a prospectus containing information
relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been
filed within the prescribed time period, and prior to the applicable
Closing Time with the Commission in accordance with Rule 424(b) (or
any required post-effective amendment providing such information shall
have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Operating Partnership has
elected to rely
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23
upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 information shall have been filed with the Commission in
accordance with Rule 424(b)(7); (iii) the rating assigned by any
nationally recognized statistical rating organization to Debt
Securities of the Operating Partnership as of the date of the
applicable Terms Agreement shall not have been lowered since such date
nor shall any such rating organization have publicly announced that it
has placed any Debt Securities of the Operating Partnership on what is
commonly termed a "watch list" for possible downgrading; and (iv)
there shall not have come to your attention any facts that would cause
you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the 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, the Operating Partnership
and the Subsidiaries, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, to the effect that:
(i) The Operating Partnership has been
duly formed and is validly existing as a limited partnership
under the Georgia Act. The Operating Partnership has
partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged,
and, to counsel's knowledge, is duly qualified as a foreign
partnership in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding interests in
the Operating Partnership have been duly authorized and
validly issued and fully paid.
(ii) Each of Post Services, Inc., Post
Asset Management, Inc., Post Landscape Services, Inc. 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 and is in
good standing in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding shares of
capital stock, LLC interests and partnership interests of each
Significant Subsidiary have been duly authorized and validly
issued, are fully paid and are owned, to such counsel's
knowledge, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, other than 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
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24
stock of each of the other Significant Subsidiaries are owned
by Post Services, Inc.
(iii) The Indenture has been duly
qualified under the 1939 Act and has been duly authorized,
executed and delivered by the Operating Partnership and
(assuming due authorization, execution and delivery by the
Trustee) constitutes the valid and binding obligation of the
Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, or similar laws affecting creditors'
rights generally from time to time in effect and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity) and except that a waiver of rights under any usury law
may be unenforceable.
(iv) The Underwritten Securities have
been duly and validly authorized by all necessary action and,
when executed, authenticated and delivered in accordance with
the Indenture and against payment therefor as specified in the
applicable Terms Agreement or the Delayed Delivery Contracts,
if any, will be entitled to the benefits of the Indenture and
will be valid and legally binding obligations of the Operating
Partnership enforceable against the Operating Partnership in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
or similar laws affecting creditors' rights generally from
time to time in effect and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity) and except that a waiver of
rights under any usury law may be unenforceable.
(v) 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 Operating Partnership, and the Operating
Partnership has the power and authority to perform its
obligations hereunder and thereunder.
(vi) The execution and delivery of this
Agreement and the applicable Terms Agreement by the Operating
Partnership, and the performance by the Operating Partnership
of its obligations hereunder and thereunder and the
consummation of the transactions contemplated hereunder and
thereunder, did not, do not and will not conflict with or
constitute a breach or violation of, or default under: (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
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25
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.
(vii) The Registration Statement is
effective under the 1933 Act and, to counsel's knowledge based
solely upon telephonic confirmation from the staff of the
Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been initiated or
threatened by the Commission.
(viii) The Underwritten Securities and the
Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus.
(ix) No consent, approval, authorization
or order of, or qualification with, any governmental body or
agency and no consent, approval, or authorization of any
person other than the Operating Partnership is required for
the performance by the Operating Partnership of its
obligations under this Agreement, the applicable Terms
Agreement, the Indenture or the Underwritten Securities,
except such as may be required under the 1933 Act, the 1939
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.
(x) To the knowledge of counsel, there
is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or threatened against or affecting the Company, the Operating
Partnership, any 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 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.
(xi) None of the Company, the Operating
Partnership or any Subsidiary is required to be registered as
an investment company under the 1940 Act.
(xii) The information (A) in the
Prospectus and the applicable Prospectus Supplement under the
headings "Description of Debt Securities" and "Federal Income
Tax Considerations" and (B) in the Operating Partnership's
Form 10 under "Recent Sales of Unregistered Securities," to
the extent that it constitutes
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26
matters of law or legal conclusions has been reviewed by such
counsel, is correct and presents fairly the information
required to be disclosed therein.
(xiii) At the time the Registration
Statement became effective and at the Representation Date, the
Registration Statement and Prospectus (except for financial
statements and schedules included therein or the Statement
Eligibility, as to which such counsel need not express any
opinion), excluding the documents incorporated by reference
therein, complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the 1933 Act
Regulations.
(xiv) Each document heretofore filed
pursuant to the 1934 Act and incorporated or deemed to be
incorporated by reference in the Prospectus (except for
financial statements and 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.
(xv) 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.
(xvi) The Operating Partnership and each
of the Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnerships that
have terminated, through the date of termination of such
Subsidiary Partnerships.
(c) At Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of Hogan &
Hartson L.L.P., counsel for the Underwriters, with respect to the
matters set forth in (i) (first sentence only), (iii), (iv), (v),
(vii), (viii), (xii) (solely with respect to information set forth in
"Description of Debt Securities"), and (xiii) of Section 5(b) above.
(d) In rendering their opinions required by
Sections 5(b) and (c), respectively, King & Spalding and Hogan &
Hartson L.L.P. shall each additionally state (which shall not
constitute an opinion) that no facts have come to the attention of
such counsel which cause them to believe that the Registration
Statement or any amendment thereto (except for financial statements
and supporting schedules and other financial information and data
included therein or omitted therefrom, or the Statement of
Eligibility, as to which such counsel need not express any view), as
of the time it became effective under the 1933 Act (and as of the time
of filing of the Operating Partnership's Annual Report on Form 10-K, if
filed subsequent to the time of effectiveness), or at the date of the
applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto
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27
(except as aforesaid) as of the date of the applicable Terms Agreement
or at the applicable Closing Time, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
In giving their opinions required by Section 5(b) and 5(c),
such counsel (A) may rely as to all matters of fact, upon certificates
and written statements of officers and employees of and accountants
for the Operating Partnership and (B) may rely as to the qualification
and good standing of each of the Operating Partnership or any of the
Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, which opinions shall be in form and
substance satisfactory to counsel for the Underwriters. In giving
their belief required in this Section 5(d), such counsel may state
that their belief is based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments and
supplements thereto and review and discussion of the contents thereof.
(e) At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any Material Adverse Effect, whether or not arising in the ordinary
course of business, and you shall have received a certificate of the
President or a Vice President of the Company and the Operating
Partnership, and the chief financial officer or chief accounting
officer of the Company and the Operating Partnership, dated as of the
Closing Time, to the effect that (i) there has been no such Material
Adverse Effect, (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Operating
Partnership has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(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
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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
Operating Partnership has elected to rely on Rule 430A of the 1933 Act
Regulations, to the further effect that they have carried out the
procedures specified in clause (iv) of subsection (f) of this section
with respect to certain amounts, percentages and financial and
statistical information specified by you and deemed to be part of the
Registration Statement pursuant to Rule 430A(b) and have found such
amounts, percentages and financial and statistical information to be
in agreement with the records specified in such clause (iv).
(h) At Closing Time and at any relevant Date of
Delivery, the Underwritten Securities shall be rated investment grade
by any "nationally recognized statistical rating organization," as
defined by the Commission for purposes of Rule
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29
436(g)(2) of the 1933 Act Regulations, if and as specified in the
Applicable Terms Agreement, and the Operating Partnership shall have
delivered to you a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to you, confirming
that the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or
any of the Company's or the Operating Partnership's other securities
by any such rating organization, and no such rating organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten
Securities or any of the Company's or the Operating Partnership's
other securities.
(i) If the Registration Statement or an offering
of Underwritten Securities has been filed with the NASD for review,
the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(j) In the event that the Underwriters are
granted an over-allotment option by the Operating Partnership in the
applicable Terms Agreement and the Underwriters exercise their option
to purchase all or any portion of the Option Underwritten Securities,
the representations and warranties of the Operating Partnership
contained herein and the statements in any certificates furnished by
the Company or the Operating Partnership hereunder shall be true and
correct as of each Date of Delivery, and, at the relevant Date of
Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and the
Operating Partnership and the chief financial officer or chief
accounting officer of the Company and the Operating
Partnership, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery,
(2) The favorable opinion of King & Spalding,
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery
relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(b)
hereof (including the statement of belief required by Section
5(d) hereof).
(3) The favorable opinion of Hogan & Hartson LLP,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(c)
hereof (including the statement of belief required by Section
5(d) hereof).
(4) A letter from 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) here of,
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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.
(k) At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Operating Partnership in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to you and counsel for the Underwriters.
(l) If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
you by notice to the Operating Partnership at any time at or prior to
the Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 4, 6 and 7
shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) 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
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31
settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written
consent of the Operating Partnership; and
(3) against any and all expense
whatsoever, as incurred (including, without limitation, the
fees and other charges of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
information and the Rule 434 information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Operating Partnership, its directors, officers, employees and
affiliates and each person, if any, who controls the Operating Partnership
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A information and the Rule 434 information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Operating Partnership by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Merrill Lynch, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Operating Partnership. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel
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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
Operating Partnership on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Operating Partnership, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before
deducting expenses) received by the Operating Partnership, and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus,
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or, if Rule 434 is used, the corresponding location on the Term Sheet bear to
the aggregate initial public offering price of such Underwritten Securities as
set forth on such cover.
The relative fault of the Operating Partnership, on the one
hand, and the Underwriters, on the other 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 Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Operating Partnership
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Operating Partnership. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the aggregate principal amount of Initial
Underwritten Securities set forth opposite their respective names in applicable
Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement or in certificates of officers
of 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
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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 Operating
Partnership or by you upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) You may terminate the applicable Terms Agreement, by
notice to the Operating Partnership, at any time at or prior to the applicable
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs,
assets or business prospects of the Company, the Operating Partnership and
their subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities are denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets, or any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in your judgment, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange,
Inc. or if trading generally on the New York Stock Exchange, Inc. or the
American Stock Exchange, Inc. has been suspended or limited, or, minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by order of the Commission, or
any other governmental authority, (iv) a banking moratorium has been declared
by either Federal or New York authorities or, if the Underwritten Securities
are denominated or payable in, or indexed to, one or more foreign or composite
currencies, by the relevant authorities in the related foreign country or
countries or (v) if the rating assigned by any nationally recognized
statistical rating organization to any Debt Securities of the Operating
Partnership as of the date of the applicable Terms Agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced that it has placed any Preferred Stock of the Company or Debt
Securities of the Operating Partnership on what is commonly termed a "watch
list" for possible downgrading. As used in this Section 9(b), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of
the Underwritten Securities.
(c) If this Agreement or the applicable Terms Agreement
is terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 4, 6 and 7 shall survive such
termination and remain in full force and effect.
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SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the applicable Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then you shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, you shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal
amount of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms bear to
the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Operating Partnership shall
have the right to postpone the applicable Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to Merrill Lynch at Merrill Lynch World
Headquarters, World Financial Center, North Tower, 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.
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36
SECTION 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Operating
Partnership, you and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned
in this Agreement or such Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters 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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37
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Operating Partnership a
counterpart hereof, whereupon this Agreement, along with all counterparts, will
become a binding agreement between you and the Operating Partnership in
accordance with its terms.
Very truly yours,
POST APARTMENT HOMES, L.P.
By: POST PROPERTIES, INC., its
general partner
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 APARTMENT HOMES, L.P.
a Georgia limited partnership
Debt Securities
TERMS AGREEMENT
To: Post Apartment Homes, L.P.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, GA 30339
Ladies and Gentlemen:
We understand that Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), proposes to issue and sell
[$________ aggregate principal amount of its [senior] [subordinated] debt
securities (the "Debt Securities")] [such securities also being hereinafter
referred to as the "Initial Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities opposite their
names set forth below at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities set forth below, to the
extent any are purchased].
Principal Amount
Underwriter of Initial Underwritten Securities
Total [$]
A-1
39
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share:
_____________% of the principal amount, plus accrued interest
[amortized original issue discount], if any, from __________.
Purchase price per share: _____% of principal amount, plus accrued interest
[amortized original issue discount], if any, from __________ (payable
in next day funds).
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as
Annex I entitled "POST APARTMENT HOMES, L.P.--Debt Securities--Purchase
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-2
40
EXHIBIT B
POST APARTMENT HOMES L.P.
(a Georgia limited partnership)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_______________ __, 1996
Post Apartment Homes, L.P.
3350 Cumberland Circle, Suite 2200
Atlanta, Georgia 30339
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Post Apartment Homes, L.P.
(the "Operating Partnership"), and the Operating Partnership agrees to sell to
the undersigned on ______________ __, 19__ (the "Delivery Date"),
________________________ principal amount of the Operating Partnership's
[insert title of security] (the "Securities"), offered by the Operating
Partnership's Prospectus dated ________________ __, 19__, as supplemented by
its Prospectus Supplement dated ______________ __, 19__, receipt of which is
hereby acknowledged, at a purchase price of [__% of the principal amount
thereof, plus accrued interest from ____________ __, 19__,] to the Delivery
Date, and on further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Operating Partnership or its order by
[certified or official bank check in New York Clearing House] [same day] funds
at the office of __________________________________________, on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate in written or telegraphic communication
addressed to the Operating Partnership not less than five full business days
prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject only to the conditions
that (1) the purchase of the Securities to be made by the undersigned shall not
on the Delivery Date be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Operating Partnership, on or before
_________________ __, 19__, shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the Securities as is
sold to them pursuant to the
41
Terms Agreement dated _______________ __, 19__ between the Operating
Partnership and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for the Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for the
Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Operating
Partnership will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinions of counsel
for the Operating Partnership delivered to the Underwriters in connection
therewith.
By the execution hereof, the undersigned represents and warrants to the
Operating Partnership that all necessary corporate action for the due execution
and delivery of this contract and the payment for and purchase of the
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the
Operating Partnership and mailing or delivery of a copy as provided below, this
contract will constitute a valid and binding agreement of the undersigned in
accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Operating Partnership will not accept Delayed
Delivery Contracts for an aggregate principal amount of Securities in excess of
$________ and that the acceptance of any Delayed Delivery Contract is in the
Operating Partnership's sole discretion and, without limiting the foregoing,
need not be on a first-come, first-served basis. If this contract is
acceptable to the Operating Partnership, it is requested that the Operating
Partnership sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Operating Partnership and the
undersigned when such copy is so mailed or delivered.
2
42
This Delayed Delivery Contract shall be governed by the laws of the State
of New York.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By:
--------------------------------
(Title)
-----------------------------------
-----------------------------------
(Address)
Accepted as of the date first above written.
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc., General Partner
By:
--------------------------------
Name:
Title:
3
43
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
4