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EXHBIT 1
POST PROPERTIES, INC.
(a Georgia corporation)
Common Stock, Preferred Stock and Depositary Shares
PURCHASE AGREEMENT
February 4, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
250 Vesey Street
New York, New York 10281-1209
Ladies and Gentlemen:
Post Properties, Inc., a Georgia corporation (the "Company"), proposes
to issue and sell up to $400,000,000 aggregate initial public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), and (iii) shares of Preferred Stock represented by Depositary Shares
(the "Depositary Shares") in amounts, at prices and on terms to be determined at
the time of offering.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable articles of amendment (each, the "Articles of
Amendment") relating to such series of Preferred Stock. A series of Preferred
Stock may be represented by Depositary Shares that are evidenced by depositary
receipts (the "Depositary Receipts") issued pursuant to a deposit agreement
(each, a "Deposit Agreement") among the Company, the depositary identified
therein (the "Depositary") and the registered holders of the Depositary Receipts
issued thereunder.
As used herein, "Securities" shall mean the Common Stock, Preferred
Stock or Depositary Shares, or any combination thereof, initially issuable by
the Company and "Underlying Securities" shall mean the Common Stock or Preferred
Stock issuable upon conversion of the Preferred Stock or Depositary Shares, as
applicable. Unless the context otherwise requires, as used herein, "you" and
"your"
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shall mean the parties to whom this Agreement is addressed together with the
other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you, or through an underwriting syndicate managed by you, the Company
will enter into an agreement (each a "Terms Agreement") providing for the sale
of such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
(the "Underwriters," which term shall include you, whether acting as sole
Underwriter or as a member of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than you acting as co-manager in connection with such
offering, the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment and any
delayed delivery arrangements of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities (including,
but not limited to, current ratings, if applicable, designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements), as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the number
of Underwritten Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering of
Underwritten Securities through you as sole Underwriter or through an
underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of such Underwritten Securities.
The Company and Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership") have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
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(No. 333-36595) for the registration of, among other securities, the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 430A or Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations, and each prospectus supplement relating to the
offering of Underwritten Securities pursuant to Rule 430A or Rule 415 of the
1933 Act Regulations (the "Prospectus Supplement")), including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act") or otherwise, are collectively referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, that if
any revised Prospectus shall be provided to you by the Company for use in
connection with the offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to each such revised prospectus from and after the time
it is first provided to you for such use; provided, further, that a Prospectus
Supplement shall be deemed to have supplemented the Prospectus only with respect
to the offering of Underwritten Securities to which it relates. Any registration
statement (including any supplement thereto or information which is deemed part
thereof) filed by the Company under Rule 462(b) of the 1933 Act Regulations (a
"Rule 462(b) Registration Statement") shall be deemed to be part of the
Registration Statement. Any prospectus (including any amendment or supplement
thereto or information which is deemed part thereof) included in the Rule 462(b)
Registration Statement and any term sheet as contemplated by Rule 434 of the
1933 Act Regulations (a "Term Sheet") shall be deemed to be part of the
Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or
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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 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 Company and the
Operating Partnership.
(a) The Company and the Operating Partnership, jointly and severally,
represent and warrant to you, as of the date hereof, and to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(1) The Company and the Operating Partnership meet
the requirements for use of Form S-3 under the 1933 Act. Each
of the Registration Statement, the Prospectus and any Rule
462(b) Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued
under the 1933 Act and no proceeding for that purpose has been
instituted or is pending or, to the knowledge of the Company,
is contemplated or threatened by the Commission or by the
state securities authority of any jurisdiction, and any
request on the part of the Commission for additional
information has been complied with. No order preventing or
suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the
knowledge of the Company or the Operating Partnership,
threatened by the Commission or by the state securities
authority of any jurisdiction.
(2) The Registration Statement, at the time it became
effective, complied, and the Registration Statement and the
Prospectus at each Representation Date will comply in all
material respects with the requirements of the 1933 Act and
the 1933 Act Regulations. The Registration Statement, at the
time the Registration Statement became effective, did not, and
as of each Representation Date, will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading. At the date of the
Prospectus, at the Closing Time and at each Representation
Date, the Prospectus and
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any amendments and supplements thereto (unless the term
"Prospectus" refers to a prospectus which has been provided to
you by the Company for use in connection with an offering of
Underwritten Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement
became effective, in which case at the time it is first
provided to you for such use) did not and will not contain an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. If the Company elects to rely upon Rule
434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing,
the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by any Underwriter through you expressly for use in
the Registration Statement or the Prospectus. If a Rule 462(b)
Registration Statement is required in connection with the
offering and sale of the Underwritten Securities, the Company
has complied or will comply with the requirements of Rule 111
of the 1933 Act Regulations relating to the payment of filing
fees therefor.
(3) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied, when so filed, in all material
respects with the 1933 Act Regulations and, if applicable,
each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with the offering of
Underwritten Securities will, at the time of such delivery, be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(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
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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) Each of Price Waterhouse LLP and Ernst & Young
LLP, the accounting firms 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 and preferred stock dividends (actual and, if any, pro
forma) included in the Prospectus under the captions "Ratios
of Earnings to Fixed Charges and Preferred Stock Dividends"
and in Exhibit 12.1 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of
the Commission. In addition, any pro forma financial
statements included in, or incorporated by reference into, the
Registration Statement and the Prospectus comply in all
material respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission, and the assumptions
used in the preparation thereof are, in the opinion of the
Company, reasonable and the adjustments used therein are
appropriate to give effect to the transactions and
circumstances referred to therein and have been
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properly applied to the historical amounts in the compilation
of such statements. Other than the historical financial
statements (and schedules) included therein, no other
historical or pro forma financial statements (or schedules)
are required by the 1933 Act or the 1933 Act Regulations to be
included in the Registration Statement.
(7) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or
business prospects of the Company, the Operating Partnership
and their Subsidiaries considered as one enterprise (a
"Material Adverse Effect"), whether or not arising in the
ordinary course of business; (B) no casualty loss or
condemnation or other adverse event with respect to any of the
interests held directly or indirectly in any of the real
properties owned, directly or indirectly, by the Company, the
Operating Partnership or their Subsidiaries (the "Properties")
has occurred that is material to the Company, the Operating
Partnership and their Subsidiaries considered as one
enterprise; (C) there have been no transactions entered into
by the Company, the Operating Partnership or any Subsidiary,
other than those arising in the ordinary course of business,
which are material with respect to the Company, the Operating
Partnership and their Subsidiaries considered as one
enterprise or that would result, upon consummation, in any
material inaccuracy in the representations contained in
Section 1(a)(6) above; (D) neither the Company, the Operating
Partnership nor any Subsidiary has incurred any material
obligation or liability, direct, contingent or otherwise; and
(E) there has been no material change in the short-term debt
or long-term debt of the Company or the Operating Partnership.
(8) The Company has been duly organized and is
validly existing as a corporation in good standing under the
Georgia Business Corporation Code with corporate power and
authority to own, lease and operate its properties, to conduct
its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement, the
applicable Terms Agreement, any Deposit Agreement, the Delayed
Delivery Contracts (as defined herein), if any and the other
agreements to which it is a party. The Company is duly
qualified or registered as a foreign corporation to transact
business in the States of ________________ and each other
jurisdiction in which such qualification or registration is
required, whether by reason of the
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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) Post GP Holdings, Inc. has been duly organized
and is validly existing as a corporation in good standing
under the Georgia Business Corporation Code with corporate
power and authority to own, lease and operate its properties,
to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement,
the applicable Terms Agreement, any Deposit Agreement, the
Delayed Delivery Contracts, if any and the other agreements to
which it is a party. Post GP Holdings, Inc. is duly qualified
or registered as a foreign corporation to transact business
and is in good standing in the States of Florida, North
Carolina, Tennessee and Texas and 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. All of the issued and
outstanding shares of capital stock of Post GP Holdings, Inc.
have been duly authorized and validly issued and fully paid.
(10) Post LP Holdings, Inc. is a corporation duly
formed and is validly existing and in good standing under the
laws of the State of Georgia. Post LP Holdings, Inc. has the
power and authority to own, lease and operate its properties
and conduct the business in which it is engaged and, to our
knowledge, such corporation is duly qualified as a foreign
corporation in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding shares of
capital stock of Post LP Holdings, Inc. have been duly
authorized and validly issued and fully paid.
(11) 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 States of Florida,
North Carolina, Tennessee and Texas and 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
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failure to so qualify or register would not have a Material
Adverse Effect.
(12) Each of the Subsidiaries has been duly formed
and is validly existing and in good standing under the laws of
its jurisdiction of organization with partnership or corporate
power and authority to conduct the business in which it is
engaged and to own, lease and operate its properties as
described in the Prospectus. Each of the Subsidiaries is duly
qualified as a foreign partnership, corporation or other
organization to transact business and is in good standing in
each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property, the
management of properties by others or the conduct of business
except where the failure to so qualify or register would not
have a Material Adverse Effect.
(13) The capitalization of the Company is as set
forth in the Prospectus (except for subsequent issuances
thereof, if any, contemplated under this Agreement, pursuant
to employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus). Such shares of capital stock
have been duly authorized and validly issued by the Company
and are fully paid and non-assessable, and none of such shares
of capital stock were issued in violation of preemptive or
other similar rights arising by operation of law, under the
charter and by-laws of the Company or under any agreement to
which the Company, the Operating Partnership or any of their
subsidiaries is a party, or otherwise.
(14) 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, directly or indirectly, 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, directly or indirectly, is the sole general partner
of the Operating Partnership.
(15) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be,
of each Subsidiary have been validly issued and fully paid and
are owned by the Company, the Operating Partnership, another
Subsidiary, and/or certain affiliated entities as described in
the Registration Statement, in each case free and clear of any
security interest, mortgage, pledge, lien,
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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.
(16) Except for transactions described in the
Prospectus and transactions in connection with stock and
Operating Partnership interests (the "Unit") option and
dividend reinvestment plans and exchanges of Units, there are
no outstanding securities convertible into or exchangeable for
any capital stock of the Company and no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such shares, Units or other securities of the
Company, the Operating Partnership or any of their
subsidiaries.
(17) Each of the Company and the Operating
Partnership has full power and authority to enter into and
perform its obligations under this Agreement, the applicable
Terms Agreement, the Deposit Agreement, if applicable and the
Delayed Delivery Contracts (as defined in Section 2 hereof),
if any and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement, Deposit
Agreement, if any, and the Delayed Delivery Contracts, if any,
will have been, duly authorized, executed and delivered by
each of the Company and the Operating Partnership and,
assuming due authorization and delivery by the other parties
thereto, each is a valid and binding agreement of the Company
and the Operating Partnership enforceable against the Company
and the Operating Partnership in accordance with its terms,
except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, (B) the
availability of equitable remedies may be limited by equitable
principles of general applicability, and (C) rights to
indemnity and contribution thereunder may be limited by state
or federal securities laws or the public policy underlying
such laws.
(18) The Common Stock has been, or as of the date of
the applicable Terms Agreement will have been, duly authorized
for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered as provided herein
and in the applicable Terms Agreement, the Common Stock will
be validly issued, fully paid and non-assessable; the
Preferred Stock has been, or as of the date of the applicable
Terms Agreement will have been, duly authorized and classified
and when Articles of Amendment setting the terms of the
Preferred Stock are duly executed and filed with the Secretary
of State of the State of Georgia and the Preferred Stock is
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duly paid for, sold and issued, and certificates therefor are
duly executed, countersigned and delivered as provided herein
and in the applicable Terms Agreement or any Delayed Delivery
Contract, the Preferred Stock will be validly issued, fully
paid and non-assessable; when Depositary Receipts evidencing
any Depositary Shares are issued and delivered against deposit
of Preferred Stock and against payment for the Depositary
Shares pursuant to this Agreement, the Terms Agreement
relating to the Depositary Shares and the Deposit Agreement,
the Preferred Stock will be validly issued, fully paid and
non-assessable, and the Depositary Receipts will be legally
issued and will entitle the holders thereof to the rights
specified in the Depositary Receipts and the Deposit
Agreement; the Preferred Stock, if applicable, conforms to the
Articles of Amendment; the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform, in all
material respects, to the descriptions thereof contained in
the Prospectus; and the issuance of the Underwritten
Securities is not subject to preemptive or similar rights.
(19) Before the Closing Time for any Depositary
Shares, the Deposit Agreement will be duly authorized and
executed by the Company, and assuming due authorization,
execution and delivery by the Depositary, the Deposit
Agreement will constitute a valid and legally binding
instrument of the Company enforceable against the Company in
accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability, and (C) rights to indemnity and contribution
thereunder may be limited by state or federal securities laws
or the public policy underlying such laws.
(20) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock or the Depositary
Shares have been, or as of the date of such Terms Agreement
will have been, duly and validly authorized and reserved for
issuance by the Company upon such conversion by all necessary
action and such shares, when issued upon such conversion, will
be duly and validly issued, fully paid and non-assessable and
the issuance of such shares upon such conversion will not be
subject to preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company or any of its
subsidiaries is a party, or otherwise. The Common Stock
issuable upon conversion of any of the Preferred Stock or
Depositary Shares will conform in all material respects to the
descriptions thereof in the Prospectus.
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(21) The Underwritten Securities being sold pursuant
to the applicable Terms Agreement and each applicable Deposit
Agreement, as of the date of the Prospectus, and any
Underlying Securities, when issued and delivered in accordance
with the terms of the related Underwritten Securities, will
conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement.
(22) Neither the Company, the Operating Partnership
nor any of their Subsidiaries is in violation of its charter,
by-laws, certificate of limited partnership, partnership
agreement or LLC agreement, as the case may be, or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it or any of them is
a party or by which any of them may be bound, or to which any
of their property or assets is subject, except for such
defaults that would not result in a Material Adverse Effect.
The execution, delivery and performance of this Agreement or
the applicable Terms Agreement or any Deposit Agreement and
the transactions contemplated herein or therein including the
issuance, sale and delivery of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten
Securities as described in the Prospectus under the caption
"Use of Proceeds," and compliance by the Company and the
Operating Partnership with its obligations hereunder and
thereunder (A) do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties
or operations of the Company, the Operating Partnership or any
of their Subsidiaries pursuant to, any material contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the
Company, the Operating Partnership or any of their
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of their properties or assets is
subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or
partnership agreement of the Company, the Operating
Partnership or any Subsidiary, as the case may be, or (ii) any
applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government agency or court,
domestic or foreign, having jurisdiction over the Company, the
Operating Partnership or any Subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the
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holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company, the
Operating Partnership or any Subsidiary.
(23) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists
or, to the knowledge of the Company and the Operating
Partnership, is imminent, which may result in a Material
Adverse Effect.
(24) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company or
the Operating Partnership threatened, against or affecting the
Company, the Operating Partnership, any Subsidiary thereof,
any Property or any officer or director of the foregoing,
which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein),
or which might result in a Material Adverse Effect, or which
might materially and adversely affect the consummation of this
Agreement or the applicable Terms Agreement or any Deposit
Agreement or the Delayed Delivery Contracts or the
transactions contemplated herein or therein. There is no
pending legal or governmental proceedings to which the
Company, the Operating Partnership or any Subsidiary is a
party or of which any of their respective assets or properties
is subject which might result in a Material Adverse Effect.
(25) 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.
(26) No authorization, approval or consent of any
court or governmental authority or agency is necessary or
required for the performance by the Company and the Operating
Partnership of their obligations under this Agreement or the
applicable Terms Agreement or in connection with the
transactions contemplated under this Agreement, such Terms
Agreement or any Deposit Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the
1933 Act Regulations or state securities or real estate
syndication laws.
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(27) The Company, the Operating Partnership and their
Subsidiaries own or possess trademarks, service marks, trade
names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company, the Operating
Partnership nor any of their Subsidiaries has received any
notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate
to protect the interest of the Company, the Operating
Partnership or any of their Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse
Effect.
(28) Each of the Company, the Operating Partnership
and their Subsidiaries has all permits, licenses, approvals,
consents, certificates and other authorizations of and from
(collectively, "Governmental Licenses") and has made all
declarations and filings with, all appropriate federal, state,
local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals required for it to own, lease, license and use its
properties and assets and to conduct its business in the
manner described in the Registration Statement and the
Prospectus, other than such Governmental Licenses the absence
of which, singly or in the aggregate, could result in a
Material Adverse Effect. Neither the Company, the Operating
Partnership nor any of their Subsidiaries has received any
notice of proceedings relating 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.
(29) (A) The Company and the Operating Partnership
have good and marketable fee simple title to the land
underlying the Properties (or, in the case of the Property
known as "Post Renaissance," a good and marketable leasehold
interest in the land underlying such Property) and good and
marketable title to the improvements thereon and all other
assets that are required for the effective operation of such
Properties in the manner in which they currently are operated,
subject, however, to existing mortgages on such Properties, to
utility easements serving such Properties, to liens of ad
valorem taxes not due and payable as of the Closing Time, to
zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of
such Properties, to matters of title not adversely affecting
marketability of title to such Properties, other statutory
liens not due and payable as of the Closing Time, title
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matters that may be material in character, amount or extent
but which do not materially detract from the value, or
interfere with the use of, the Properties or otherwise
materially impair the business operations being conducted or
proposed to be conducted thereon, ownership of cable
television lines and facilities serving one or more of such
Properties by the cable television providers or their
affiliates, service marks and trade names used in connection
with such Properties, and ownership by others of certain items
of equipment and other items of personal property that are not
material to the conduct of business operations at such
Properties; (B) the ground lease under which the Company and
the Operating Partnership lease the land on which the Property
known as "Post Renaissance" is located is in full force and
effect, and the Company and the Operating Partnership are not
in default in respect of any of the terms or provisions of
such lease and the Company and the Operating Partnership have
not received notice of the assertion of any claim by anyone
adverse to the Company's or the Operating Partnership's rights
as lessee under such lease, or affecting or questioning the
Company's or the Operating Partnership's right to the
continued possession or use of the Property under such lease
or of a default under such lease, other than claims which
would not have a Material Adverse Effect; (C) all liens,
charges, encumbrances, claims, or restrictions on or affecting
any of the Properties and the assets of the Company and the
Operating Partnership or any Subsidiary which are required to
be disclosed in the Prospectus are disclosed therein; (D) none
of the Company and the Operating Partnership or any tenant of
any of the Properties is in default under any of the leases
pursuant to which the Company and the Operating Partnership,
as lessor, leases its Property (and the Company and the
Operating Partnership do not know of any event which, but for
the passage of time or the giving of notice, or both, would
constitute a default under any of such leases) other than such
defaults that would not have a Material Adverse Effect; (E) no
person has an option or right of first refusal to purchase all
or part of any Property or any interest therein; (F) each of
the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to access
to the Properties), except to the extent disclosed in the
Prospectus and except for such failures to comply that would
not individually or in the aggregate have a Material Adverse
Effect; (G) the Company and the Operating Partnership do not
have knowledge of any pending or threatened condemnation
proceedings, zoning change, or other similar proceeding or
action that will in any manner affect the size of, use of,
improvements on, construction on or access to the Properties,
except such proceedings or actions that would not have a
Material Adverse Effect; and (H) other than with respect to
the
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Property known as "Post Woods," the Company and the Operating
Partnership are the beneficiaries of title insurance on the
Properties in amounts that were commercially reasonable at the
time such policies were issued, and in each case such title
insurance is in full force and effect.
(30) The Company and the Operating Partnership are
not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not
be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(31) Except as disclosed in the Prospectus, (A) each
Property, including, without limitation, the Environment (as
defined below) at each Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental
Law (as defined below) applicable to the Properties except for
any Hazardous Substance that would have any Material Adverse
Effect; (B) none of the Company, the Operating Partnership or
any Subsidiary has caused or suffered to occur any Release (as
defined below) of any Hazardous Substance into the Environment
on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no
condition exists on, in or under any Property or, to the
knowledge of the Company or the Operating Partnership, any
property adjacent to any Property that could result in the
occurrence of material liabilities under, or any material
violations of, any Environmental Law applicable to such
Property, give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute a
health, safety or environmental hazard to any property, person
or entity; (C) none of the Company, the Operating Partnership
or any Subsidiary is engaged in or intends to engage in any
manufacturing or any similar operations at any Property that
(1) require the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides,
or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (D) none of the
Company, the Operating Partnership or any Subsidiary has
received any notice of a claim under or pursuant to any
Environmental Law applicable to a Property or under common law
pertaining to Hazardous Substances on any Property or
pertaining to other property at which Hazardous Substances
generated at any Property have come to be located; (E) none of
the Company, the Operating Partnership or
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any Subsidiary has received any notice from any Governmental
Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the
date hereof; and (F) no Property (1) is included or to the
knowledge of the Company, the Operating Partnership or any
Subsidiary, proposed for inclusion on the National Priorities
List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or
on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA as
a potential CERCLA removal, remedial or response site or (2)
is included or proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, the
Operating Partnership, or any subsidiary received any written
notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
toxic or dangerous substance, pollutant, solid waste or
similarly designated materials, including, without limitation,
oil, petroleum, or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant
or waste, including any such substance, pollutant or waste
identified, listed or regulated under any Environmental Law
(including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 3202, as
the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land
surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42
U.S.C. ss. 9601, et seq.) ("CERCLA"), the Resource
Conservation Recovery Act, as amended (42 U.S.C. ss. 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Occupational Safety and Health Act of 1970, as
amended (15 U.S.C. ss. 2601, et seq.), the Toxic Substances
Control Act, as amended (29 U.S.C. ss. 651, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C.
ss. 1801, et seq.), together with all rules, regulations and
orders promulgated thereunder and all other federal, state and
local laws, ordinances, rules, regulations and orders relating
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to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any
federal, state or local governmental office, agency or
authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any material mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(32) Each of the Company, the Operating Partnership
and their Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in
which they are engaged.
(33) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for each of its taxable years beginning
with the taxable year ended December 31, 1993, and its current
organization and method of operation should enable it to
continue to meet the requirements for qualification and
taxation as a REIT.
(34) 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.
(35) Each of the Company, the Operating Partnership
and their Subsidiaries has filed all federal, state, local and
foreign income tax returns which have been required to be
filed (except in any case in which the failure to file would
not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is
due and payable, except in all cases for any such tax,
assessment, fine
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or penalty that is being contested in good faith.
(36) The Common Stock will be listed on the New York
Stock Exchange on the applicable Representation Date and at
the applicable Closing Time. If so stated in the applicable
Prospectus Supplement, as of the applicable Representation
Date, the Preferred Stock will have been approved for listing
on the New York Stock Exchange upon official notice of
issuance.
(37) Unless otherwise agreed by you, the Preferred
Stock will have an investment grade rating from one or more
nationally recognized statistical rating organizations at the
Representation Date and at the applicable Closing Time.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or any Subsidiary and delivered to you or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company and the Operating
Partnership to each Underwriter as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the Underwriters
named in such Terms Agreement, severally and not jointly, to purchase up to the
number of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company or the Operating Partnership and paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days or such lesser number of days as
may be specified in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice
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by you to the Company setting forth the number of Option Underwritten Securities
as to which the several Underwriters are then exercising the option and the
time, date and place of payment and delivery for such Option Underwritten
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by you, but shall not be later than seven full
business days and not be earlier than two full business days after the exercise
of said option, unless otherwise agreed upon by you and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Underwritten Securities
then being purchased which the number of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities, subject
to such adjustments as you in your discretion shall make to eliminate any sales
or purchases of a fractional number of Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W.,
Washington, D.C. 20004, or at such other place as shall be agreed upon by you
and the Company, at 9:00 a.m. (Eastern time) on the fourth business day (or the
third business day if required under Rule 15c6-1 of the 1934 Act, or unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement, or such other time as shall be agreed upon by
you and the Company (each such time and date of payment and delivery being
herein called a "Closing Time"). In addition, in the event that the Underwriters
have exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Hogan & Hartson L.L.P., or at such other place as shall be agreed upon by you
and the Company, on the relevant Date of Delivery as specified in the notice
from you to the Company or the Operating Partnership.
Payment shall be made to the Company by wire transfer or by
certified or official bank check or checks drawn in Federal or similar same-day
funds payable to the order of the Company against delivery to you for the
respective accounts of the Underwriters of the Underwritten Securities to be
purchased by them. It is understood 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.
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(d) The Underwritten Securities, or, if applicable, Depositary
Receipts evidencing the Depositary Shares, shall be in such authorized
denominations and registered in such names as you may request in writing at
least two full business days prior to the applicable Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities will
be made available for examination and packaging by you on or before the first
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Underwritten
Securities from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts") substantially in the form of Exhibit B hereto with such
changes therein as the Company may approve. As compensation for arranging
Delayed Delivery Contracts, the Company will pay to you at Closing Time, for the
respective accounts of the Underwriters, a fee specified in the applicable Terms
Agreement for each of the Underwritten Securities for which Delayed Delivery
Contracts are made at the applicable Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types described in the Prospectus. At the
applicable Closing Time, the Company will enter into Delayed Delivery Contracts
(for not less than the minimum number of Underwritten Securities per Delayed
Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate number of Underwritten Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
You shall submit to the Company, at least three business days
prior to the applicable Closing Time, the names of any institutional investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the number of Underwritten Securities to be purchased by each of
them, and the Company will advise you, at least two business days prior to the
applicable Closing Time, of the names of the institutions with which the making
of Delayed Delivery Contracts is approved by the Company and the number of
Underwritten Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
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SECTION 3. Covenants of the Company and the Operating
Partnership. Each of the Company and the Operating Partnership covenants with
you and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) In respect of each offering of Underwritten
Securities, the Company will prepare a Prospectus Supplement
setting forth the number of Underwritten Securities covered
thereby and their terms not otherwise specified in the
Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which
each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are
to be purchased by the Underwriters from the Company, the
initial public offering price, if any, the selling concession
and reallowance, if any, any delayed delivery arrangements,
and such other information as you and the Company deem
appropriate in connection with the offering of the
Underwritten Securities; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations
within the time period required by such Rule and will furnish
to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as you shall
reasonably request. If, at the time that the Registration
Statement became effective, any information shall have been
omitted therefrom in reliance upon Rule 430A of the 1933 Act
Regulations, then immediately following execution of the
applicable Terms Agreement, the Company will prepare, and file
or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) of the 1933 Act Regulations,
copies of an amended Prospectus or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus), including all information
so omitted.
(b) The Company will notify you immediately, and
confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934 Act, (iii)
the receipt of any comments from the Commission, (iv) any
request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the
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use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities or offering or
sale in any jurisdiction, or of any proceedings for any of
such purposes; and the Company will make every reasonable
effort to prevent the issuance of any such stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection
with sales of the Underwritten Securities, the Company will
give you notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b) of the 1933 Act Regulations), any Term Sheet
or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, and will furnish you
with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which you or counsel
for the Underwriters shall object.
(d) The Company has furnished or will deliver to you
and counsel for the Underwriters, without charge, as many
signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference
therein) and copies of all consents and certificates of
experts, and will also deliver to you without charge, as many
conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) as you
may reasonably request. The copies of the Registration
Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company
and the Operating Partnership hereby consent to the use of
such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters
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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 Company will comply with the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Agreement and
the applicable Terms Agreement and in the Registration
Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Underwritten
Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or for the Company, to amend
or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, or if
it shall be necessary, in the reasonable opinion of either of
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file
with the Commission such amendment or supplement in form and
substance reasonably satisfactory to counsel for the
Underwriters, whether by filing documents pursuant to the 1933
Act, the 1934 Act, or otherwise, as may be necessary to
correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering
and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions
(domestic or foreign) as you may designate and to maintain
such qualifications in effect; provided, however, that the
Company shall not be obligated to file any general consent
service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect to doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any
related Underlying Securities have been so qualified, the
Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect
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for so long as may be required for the distribution of the
Underwritten Securities or any related Underlying Securities.
(h) With respect to each sale of Underwritten
Securities, the Company and the Operating Partnership will
make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earning statement (in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a 12-month period beginning not later
than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158)
of the Registration Statement.
(i) If the applicable Terms Agreement specifies that
any related Underlying Securities include Common Stock or
Preferred Stock, the Company shall reserve and keep available
at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock and/or Preferred
Stock, as applicable, for the purpose of enabling the Company
to satisfy any obligations to issue such Underlying Securities
upon conversion of the Preferred Stock or Depositary Shares,
as applicable.
(j) The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(k) The Company will file with the New York Stock
Exchange, Inc. all documents and notices required by the New
York Stock Exchange, Inc. of companies that have securities
listed in such exchange and, to the extent the Preferred Stock
or Common Stock are listed on the New York Stock Exchange,
Inc., the Company will use its best efforts to maintain the
listing of any such Underwritten Securities on the New York
Stock Exchange, Inc.
(l) The Company and the Operating Partnership will
not, between the date of the applicable Terms Agreement and
the termination of any trading restrictions or the applicable
Closing Time, whichever is later, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any securities of the
same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten
Securities which are to be sold pursuant to such Terms
Agreement) or, if such Terms Agreement relates to Underwritten
Securities that are convertible into Common Stock, any Common
Stock or any security convertible into Common Stock (except
for Common Stock issued
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pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans, or employee and trustee share
options plans), except as may otherwise be provided in the
applicable Terms Agreement.
(m) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(n) On or prior to the Closing Time, the Company will
cause Articles of Amendment relating to the Preferred Stock or
Preferred Stock represented by Depositary Shares, if any, to
be filed with the Secretary of State of the State of Georgia
in accordance with the Georgia Business Corporation Code.
(o) The Company will continue to elect to qualify as
a "real estate investment trust" under the Code, and will use
its best efforts to meet the requirements to continue to
qualify as a "real estate investment trust" under the Code.
(p) If requested by you, the Company will use its
best efforts to cause each of the executive officers and
directors of the Company to enter into lock-up agreements in
form and substance satisfactory to the Underwriters, and the
Company acknowledges that the Underwriters are intended third
party beneficiaries of such agreements.
(q) Except for the authorization of actions permitted
to be taken by the Underwriters as contemplated herein or in
the Prospectus, the Company will not (i) take, directly or
indirectly, any action designed to cause or to result in, or
that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the
Underwritten Securities, (ii) sell, bid for or purchase the
Underwritten Securities or pay any person any compensation for
soliciting purchases of the Underwritten Securities or (iii)
pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the
Company.
(r) From the date hereof until five years after the
Closing Time, the Company and the Operating Partnership shall
furnish to you and your counsel, promptly upon their becoming
available, copies of any document filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act or any
securities exchange.
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SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement or
the applicable Terms Agreement or any Deposit Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation and delivery to the Underwriters of this
Agreement, any Terms Agreement, any Agreement among Underwriters, any Deposit
Agreement, and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Underwritten Securities or any
related Underlying Securities to the Underwriters, (iii) the preparation,
issuance and delivery of the Underwritten Securities and any related Underlying
Securities, any certificates for the Underwritten Securities or such Underlying
Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, to the Underwriters, including capital duties, stamp duties, and
stock transfer taxes, if any, (iv) the reasonable fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), (v) the qualification of the Underwritten Securities and
any related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
and delivery of the Blue Sky Memorandum and any amendment thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) any fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (viii) the fees and expenses incurred with
respect to the listing of the Underwritten Securities and any related Underlying
Securities, if applicable, on any national securities exchange, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, (x) the fees and
expenses of any Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 2710(c)(8) of the Conduct Rules of the
NASD), if applicable, (xi) the costs and expenses of the deposit of Preferred
Stock under any Deposit Agreement in exchange for Depositary Receipts, including
the charges of the Depositary in connection therewith and (xii) the fees and
expenses of the Depositary, including the fees and disbursements of counsel for
the Depositary.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
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SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy as of the date hereof and of Closing Time of the representations and
warranties of the Company and the Operating Partnership contained herein, to the
accuracy of the statements of officers of the Company, the Operating Partnership
or any Subsidiary made in any certificate delivered pursuant to the provisions
hereof, to the performance by the Company and the Operating Partnership of all
of their covenants and other obligations hereunder, and to the following further
conditions:
(a) The Registration Statement, including any Rule
462(b) Registration Statement, shall have become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to
the Underwriters; (ii) a prospectus containing information relating to
the description of the Underwritten Securities and any related
Underlying Securities, the specific method of distribution and similar
matters shall have been filed within the prescribed time period, and
prior to the applicable Closing Time with the Commission in accordance
with Rule 424(b) (or any required post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 information shall have been filed with the
Commission in accordance with Rule 424(b)(7); (iii) the rating assigned
by any nationally recognized statistical rating organization to any
Preferred Stock of the Company or debt securities of the Operating
Partnership as of the date of the applicable Terms Agreement shall not
have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed any Preferred
Stock of the Company or debt securities of the Operating Partnership on
what is commonly termed a "watch list" for possible downgrading; and
(iv) there shall not have come to your attention any facts that would
cause you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to
purchasers of the Underwritten Securities, included an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
(b) At Closing Time, the Representatives shall have
received the opinion, dated as of the applicable Closing Time, of King
& Spalding, counsel for the Company, in form and substance satisfactory
to counsel for
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the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect that:
(i) The Company is a corporation duly formed
and is validly existing and in good standing under the laws of
the State of Georgia. The Company has the power and authority
to own, lease and operate its properties and conduct the
business in which it is engaged.
(ii) Post GP Holdings, Inc. is a corporation
duly formed and is validly existing and in good standing under
the laws of the State of Georgia. Post GP Holdings, Inc. has
the power and authority to own, lease and operate its
properties and conduct the business in which it is engaged
and, to counsel's knowledge, such corporation is duly
qualified as a foreign corporation in the jurisdictions set
forth in an exhibit to the opinion. All of the issued and
outstanding shares of capital stock of Post GP Holdings, Inc.
have been duly authorized and validly issued and fully paid.
(iii) Post LP Holdings, Inc. is a
corporation duly formed and is validly existing and in good
standing under the laws of the State of Georgia. Post LP
Holdings, Inc. has the power and authority to own, lease and
operate its properties and conduct the business in which it is
engaged and, to counsel's knowledge, such corporation is duly
qualified as a foreign corporation in the jurisdictions set
forth in an exhibit to the opinion. All of the issued and
outstanding shares of capital stock of Post LP Holdings, Inc.
have been duly authorized and validly issued and fully paid.
(iv) 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.
(v) Each of the Post Services, Inc., Post
Asset Management, Inc., Post Landscape Services, Inc. and RAM
Partners, Inc. (the "Significant Subsidiaries") has been duly
incorporated and is validly existing and in good standing
under the laws of the jurisdiction of its incorporation. 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
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duly qualified as a foreign corporation or partnership in the
jurisdictions set forth in an exhibit to the opinion. All of
the issued and outstanding shares of capital stock, LLC
interests and partnership interests of each Significant
Subsidiary have been duly authorized and validly issued, are
fully paid and are owned, to such counsel's knowledge, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, other than the transfer
restrictions set forth in the Option and Transfer Agreement by
and among the Operating Partnership, Post Services, Inc., John
A. Williams and John T. Glover. The ownership of the shares of
capital stock of Post Services, Inc. is as described in the
Prospectus. All of the issued and outstanding shares of
capital stock of each of the other Significant Subsidiaries
are owned by Post Services Inc.
(vi) The Underwritten Securities and, if
applicable, the deposit of the Preferred Stock in accordance
with the provisions of a Deposit Agreement, have been duly and
validly authorized by all necessary action, and when executed,
authenticated and delivered in accordance with this Agreement
against payment of the consideration set forth in the
applicable Terms Agreement or the Delayed Delivery Contracts,
if any, will be validly issued, fully paid and non-assessable
and will be valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms. The terms of the Underwritten Securities being
sold pursuant to the applicable Terms Agreement conform in all
material respects to the description of the Underwritten
Securities set forth under "Description of Common Stock" in
the Prospectus and under "Description of Common Stock,"
"Description of Preferred Stock," "Description of Depositary
Shares," or other similar caption, as the case may be, in the
Prospectus Supplement. The issuance of the Underwritten
Securities is not subject to any statutory preemptive rights
or, to counsel's knowledge, any contractual rights to
subscribe for more shares. If applicable, the form of
certificate used to evidence the Underwritten Securities
complies with all applicable statutory requirements.
(vii) If applicable, the Common Stock
issuable upon conversion of any of the Preferred Stock or
Depositary Shares have been duly authorized and reserved for
issuance upon such conversion by all necessary action and such
shares, when issued upon such conversion will be validly
issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be
subject to any statutory preemptive rights or, to counsel's
knowledge, any contractual rights to subscribe for more
shares; and the Common Stock issuable upon conversion of the
Preferred Stock or
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the Depositary Shares conform in all material respects to the
descriptions thereof in the Prospectus.
(viii) The applicable Deposit Agreement, if
any, has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary)
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability, and (C) rights to indemnity and
contribution thereunder may be limited by state or federal
securities laws or the public policy underlying such laws; and
the Deposit Agreement, if any, conforms in all material
respects to all statements relating thereto contained in the
Prospectus.
(ix) Each of this Agreement, the applicable
Terms Agreement and the Delayed Delivery Contracts, if any,
has been duly and validly authorized, executed and delivered
by the Company and the Operating Partnership, and each of the
Company and the Operating Partnership has the power and
authority to perform its obligations hereunder and thereunder.
(x) The execution and delivery of this
Agreement and the applicable Terms Agreement by each of the
Company and the Operating Partnership, and the performance by
each of the Company and the Operating Partnership of its
obligations hereunder and thereunder and the consummation of
the transactions contemplated hereunder and thereunder, did
not, do not and will not conflict with or constitute a breach
or violation of, or default under: (1) to the knowledge of
counsel, any material contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement
or other material instrument or agreement to which the
Operating Partnership is a party or by which it or any of its
respective properties or other assets or any Property may be
bound or subject; (2) the certificate of limited partnership
or partnership agreement of the Operating Partnership; or (3)
any applicable law, rule, order, administrative regulation or
administrative or court decree, except that no opinion is
expressed under this clause (3) as to this Agreement or the
Terms Agreement with respect to federal, state or foreign
securities laws.
(xi) The Registration Statement is effective
under the 1933 Act and, to counsel's knowledge based solely on
telephonic
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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.
(xii) No consent, approval, authorization or
order of, or qualification with, any governmental body or
agency and no consent, approval, or authorization of any
person other than the Company and the Operating Partnership is
required for the performance by each of the Company and the
Operating Partnership of its obligations under this Agreement
and the applicable Terms Agreement, except such as may be
required under the 1933 Act and the securities, Blue Sky or
real estate syndication laws of various states in connection
with the offer and sale of the Underwritten Securities.
(xiii) To the knowledge of counsel, there is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or threatened against or affecting the Company, the Operating
Partnership, any Subsidiary or any material property of the
Company that is required to be disclosed in the Registration
Statement (other than as disclosed therein) or that, if
determined adversely to the Company, the Operating
Partnership, any Subsidiary or any property could reasonably
be expected to materially and adversely affect the
consummation of the transactions contemplated by this
Agreement. To the knowledge of counsel, there are no contracts
or documents of the Company, the Operating Partnership or any
Subsidiary which are required by the 1933 Act, or by the 1933
Act Regulations, the 1934 Act, or the 1934 Act Regulations to
be filed as exhibits to the Registration Statement, the
Prospectus or the documents incorporated by reference which
have not been so filed as exhibits as required.
(xiv) None of the Company, the Operating
Partnership or any Subsidiary is required to be registered as
an investment company under the 1940 Act.
(xv) The information (A) in the Prospectus
under the heading "Description of Common Stock," "Description
of Preferred Stock" and "Description of Depository Shares" and
(B) the discussion in the Prospectus under the heading
"Federal Income Tax Considerations" and in the Prospectus
Supplement under the headings "Taxation of Common Stock
Holders," "Taxation of Holders of Preferred Stock," or other
similar caption, as the case may be, to the extent that it
constitutes matters of law or legal conclusions has been
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reviewed by such counsel, is correct and presents fairly the
information to be disclosed therein.
(xvi) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement and Prospectus (except for financial
statements and schedules included therein, as to which such
counsel need not express any opinion), excluding the documents
incorporated by reference therein complied as to form in all
material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(xvii) 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.
(xviii) The Company was organized and has
operated in conformity with the requirements for qualification
and taxation as a REIT for each of its taxable years beginning
with the taxable year ended December 31, 1993, and its current
organization and method of operation should enable it to
continue to meet the requirements for qualification as a REIT.
(xix) The Operating Partnership and each of
the Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnership that
have terminated, through the date of termination of such
Subsidiary Partnerships.
(xx) To the knowledge of counsel, except as
described in the Prospectus, there are no outstanding rights,
warrants or options to acquire, or instruments convertible
into or exchangeable for, or agreements or understandings with
respect to the sale or issuance of any shares of Common Stock
or capital stock of or other equity interest in the Company or
any subsidiary of the Company.
(xxi) The Articles of Amendment relating to
the Preferred Stock and the Depositary Shares, if any, have
been filed with the Secretary of State of the State of Georgia
pursuant to the Georgia
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Business Corporation Code and the number of Preferred Stock
and the title, par value, liquidation preference, ranking,
dividend rate or rates (or method of calculation), dividend
payment dates, redemption or sinking fund requirements,
conversion provisions and other terms of the Preferred Stock
have been set forth therein.
(xxii) An amendment to the Second Amended
and Restated Agreement of Limited Partnership of the Operating
Partnership, dated as of the Closing Time, by and among Post
GP Holdings, Inc., as the general partner, and the limited
partners of the Operating Partnership (the "Partnership
Agreement Amendment") has been duly authorized, executed and
delivered by the parties thereto and is a valid and binding
agreement of the parties thereto, enforceable 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). The Preferred Partnership Units (as defined
in the Partnership Agreement Amendment) have been duly
authorized for issuance by all necessary partnership action
and, when issued and delivered against payment therefor in
accordance with the Partnership Agreement Amendment, will be
validly issued, fully paid and non-assessable. The issuance of
the Preferred Partnership Units is not subject to any
statutory or, to our knowledge, contractual preemptive rights.
(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), (ii) (first sentence
only), (iv) (first sentence only), (vi), (vii), (ix), (xi), (xv)(A) and
(xvi) of Section 5(b) above.
(d) In rendering their opinions required by Sections
5(b) and (c), respectively, King & Spalding and Hogan & Hartson L.L.P.
shall each additionally state (which shall not constitute an opinion)
that no facts have come to the attention of such counsel which cause
them to believe that the Registration Statement or any amendment
thereto (except for financial statements and supporting schedules and
other financial information and data included therein or omitted
therefrom, as to which such counsel need not express any view), as of
the time it became effective under the 1933 Act (and as of the time of
filing of the Company's Annual Report on Form 10-K, if filed subsequent
to the time of effectiveness) or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or
any
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amendment or supplement thereto (except as aforesaid) as of the date of
the applicable Terms Agreement or at the applicable Closing Time,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
In giving their opinions required by Sections 5(b)
and 5(c), such counsel (A) may rely as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company and (B) may rely as to the qualification
and good standing of each of the Company, the Operating Partnership or
any of the Subsidiaries to do business in any state or jurisdiction,
upon certificates of appropriate government officials or opinions of
counsel in such jurisdictions, which opinions shall be in form and
substance satisfactory to counsel for the Underwriters. In giving their
belief required in this Section 5(d), such counsel may state that their
belief is based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments and
supplements thereto and review and discussion of the contents thereof.
(e) At Closing Time, there shall not have been, since
the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any Material
Adverse Effect whether or not arising in the ordinary course of
business, and you shall have received a certificate of the President or
a Vice President of the Company and the Operating Partnership, and the
chief financial officer or chief accounting officer of the Company,
dated as of the Closing Time, to the effect that (i) there has been no
such Material Adverse Effect, (ii) the representations and warranties
in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company
and the Operating Partnership have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at
or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(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
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or incorporated by reference in the Registration Statement and the
Prospectus and covered by their opinions therein comply in form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations; (iii) based upon limited
procedures set forth in detail in such letter (which shall include,
without limitation, the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
with respect to the unaudited financial statements of the Company and
the Operating Partnership included or incorporated by reference in the
Registration Statement), nothing has come to their attention which
causes them to believe that (A) any material modifications should be
made to the unaudited condensed financial statements included or
incorporated by reference in the Registration Statement for them to be
in conformity with GAAP or (B) the unaudited condensed financial
statements included or incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations or (C) at a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the Common
Stock of the Company or partnership interests in the Operating
Partnership or in the consolidated long term debt of the Company and
the Operating Partnership or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from
the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and
the Prospectus to a specified date not more than five days prior to the
date of the applicable Terms Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues, or decrease in net income or net income per
share of Common Stock of the Company and the Operating Partnership, as
applicable, except in all instances for changes, increases or decreases
which the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the audit referred to in
their opinions and the limited procedures referred to in clause (iii)
above, they have carried out certain specified procedures with respect
to certain amounts, percentages and financial and statistical
information which are included in the Registration Statement and the
Prospectus and which are specified by you, and have found such amounts,
percentages and financial and statistical information to be in
agreement with relevant accounting, financial and other records of the
Company and the Operating Partnership and their Subsidiaries identified
in such letter.
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(g) At Closing Time, you shall have received from
Price Waterhouse LLP a letter, dated as of the applicable Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the applicable Closing Time and if the Company has
elected to rely on Rule 430A of the 1933 Act Regulations, to the
further effect that they have carried out the procedures specified in
clause (iv) of subsection (f) of this section with respect to certain
amounts, percentages and financial and statistical information
specified by you and deemed to be part of the Registration Statement
pursuant to Rule 430A(b) and have found such amounts, percentages and
financial and statistical information to be in agreement with the
records specified in such clause (iv).
(h) At the time of the execution of the applicable
Terms Agreement, you shall have received a letter from Ernst & Young
LLP 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 Columbus Realty Trust ("Columbus") and its
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 Columbus 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 consolidated financial statements included or
incorporated by reference in the Registration Statement for them to be
in conformity with GAAP or (B) the unaudited consolidated 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 the
date of the latest available consolidated interim financial data, there
has been any change in the capital stock of Columbus or in the
consolidated long term debt of Columbus or any decrease in the
consolidated net current assets of Columbus, 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
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date of the most recent consolidated statement of operations included
or incorporated by reference in the Registration Statement and the
Prospectus at the date of the latest available consolidated therein
financial data, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues,
or decrease in consolidated income before extraordinary items or
consolidated income before extraordinary items per share of common
stock or in consolidated net income or consolidated net income per
share of common stock of Columbus, except in all instances for changes,
increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) based upon
inquiries of certain officials of Columbus who have responsibility for
financial and accounting matters, nothing came to our attention that
(A) there was any change at a specified date not more than five days
prior to the date hereof in the capital stock, increase in long-term
debt or any decreases in consolidated net current assets or equity of
Columbus as compared with amounts shown on the most recent consolidated
balance sheets included or incorporated by reference in the
Registration Statement and the Prospectus, or (B) for the period from
the date of the latest available consolidated interim financial data to
a specified date not more than five days prior to the date hereof,
there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues or in the total or
per-share amounts of consolidated income before extraordinary items or
of consolidated net income, except in all instances for changes or
decreases which the Registration Statement and Prospectus disclose have
occurred or may occur.
(i) At Closing Time, you shall have received from
Ernst & Young 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 (h) 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.
(j) At Closing Time and at any relevant Date of
Delivery, the Underwritten Securities shall be rated investment grade
by any "nationally recognized statistical rating organization," as
defined by the Commission for purposes of Rule 436(g)(2) of the 1933
Act Regulations, if and as specified in the Applicable Terms Agreement,
and the Company or the Operating Partnership shall have delivered to
you a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to you, confirming that
the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten 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
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implications, its rating of the Underwritten Securities or any of the
Company's or the Operating Partnership's other securities.
(k) At Closing Time, if applicable, the Underwritten
Securities shall have been approved for listing on the NYSE, subject
only to official notice of issuance, if and as specified in the
applicable Terms Agreement.
(l) 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.
(m) On the date of the applicable Terms Agreement,
you shall have received, in form and substance satisfactory to it, each
lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(n) In the event that the Underwriters are granted an
over-allotment option by the Company or the Operating Partnership in
the applicable Terms Agreement and the Underwriters exercise their
option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company and the
Operating Partnership contained herein and the statements in any
certificates furnished by the Company or the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery, and,
at the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and the chief financial officer or chief accounting officer of
the Company, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery,
(2) The favorable opinion of King &
Spalding, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by
Section 5(b) hereof (including the statement of belief
required by Section 5(d) hereof).
(3) The favorable opinion of Hogan & Hartson
L.L.P., counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by
Section 5(c) hereof (including the statement of belief
required by Section 5(d) hereof).
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(4) A letter from Price Waterhouse LLP, in
form and substance satisfactory to you and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to you pursuant to Section 5(f) hereof,
except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(5) A letter from Ernst & Young 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(h) hereof,
except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(o) At Closing Time and at each Date of Delivery, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
or the Operating Partnership in connection with the issuance and sale
of the Underwritten Securities as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriters.
(p) If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
you by notice to the Company at any time at or prior to the Closing
Time (or such Date of Delivery, as applicable), and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6 and 7 shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Each of the Company and the Operating Partnership agrees,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, and any director, officer, employee
or affiliate thereof, as follows:
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(1) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A information and
the Rule 434 information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company
and the Operating Partnership; and
(3) against any and all expense whatsoever,
as incurred (including, without limitation, the fees and other
charges of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
information and the Rule 434 information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
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(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and the Operating Partnership, its directors, officers,
employees and affiliates, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A information and the Rule 434 information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company or the Operating Partnership by
such Underwriter through you expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by Merrill Lynch, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified part in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand, and the Underwriters, on
the other hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Operating Partnership, on the one hand,
and of the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
in connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet bear to the aggregate initial public offering price of such
Underwritten Securities as set forth on such cover.
The relative fault of the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other hands shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Operating
Partnership or by the
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Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Operating Partnership, and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company and
the Operating Partnership who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Operating Partnership. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement or in certificates of officers
of the Company or the Operating Partnership submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
termination of this Agreement or the applicable Terms Agreement or investigation
made by or on
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behalf of any Underwriter or controlling person, or by or on behalf of the
Company and the Operating Partnership, and shall survive delivery of and payment
for the Underwritten Securities.
SECTION 9. Termination of Agreement.
(a) This Agreement (excluding the applicable Terms Agreement)
may be terminated for any reason at any time by the Company and the Operating
Partnership or by you upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) You may terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the applicable Closing Time or
any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs, assets
or business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in your judgment, impracticable to market the Underwritten
Securities or to enforce contracts for the sale of the Underwritten Securities,
or (iii) trading in any securities of the Company has been suspended or limited
by the Commission or the New York Stock Exchange, Inc. or if trading generally
on the New York Stock Exchange, Inc. or the American Stock Exchange, Inc. has
been suspended or limited, or, minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or order of the Commission or any other governmental authority, (iv) a
banking moratorium has been declared by either Federal or New York authorities,
or (v) if the rating assigned by any nationally recognized statistical rating
organization to any Preferred Stock of the Company as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
Preferred Stock of the Company or Debt Securities of the Operating Partnership
on what is commonly termed a "watch list" for possible downgrading. As used in
this Section 9(b), the term "Prospectus" means the Prospectus in the form first
used to confirm sales of the Underwritten Securities.
(c) If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that
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Sections 1, 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the applicable Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations
under such Terms bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase,
and the Company to sell, such Option Underwritten Securities
on such Date of Delivery) shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Company shall have the right
to postpone the applicable Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
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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.
SECTION 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
and the Operating Partnership, you and, upon execution of such Terms Agreement,
any other Underwriters and their respective successors. Nothing expressed or
mentioned in this Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and the Operating Partnership and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or such Terms Agreement or
any provision herein or therein contained. This Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Counterparts.
This Agreement and the applicable Terms Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall contribute a single instrument.
SECTION 15. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
POST PROPERTIES, INC.
By:
--------------------------------------
Name:
Title:
POST GP HOLDINGS, INC., as general partner, on
behalf of POST APARTMENT HOMES, L.P.
By:
--------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first
above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:
-------------------------------------
Name:
Title:
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Exhibit A
POST PROPERTIES, INC.
a Georgia corporation
Common Stock, Preferred Stock and Depositary Shares
TERMS AGREEMENT
To: Post Properties, Inc.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, GA 30339
Ladies and Gentlemen:
We understand that Post Properties, Inc., a Georgia corporation
(the "Company"), proposes to issue and sell [_____ shares of its common stock,
par value $.01 per share (the "Common Stock")] [_____ shares of its preferred
stock, par value $.01 per share (the "Preferred Stock")] [in the form of _____
depositary shares (the "Depositary Shares") each representing ____ of a share of
Preferred Stock] (such securities also being hereinafter referred to as the
"Initial Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase, severally and not jointly, the number of
Underwritten Securities [opposite their names set forth below at the purchase
price set forth below, and a proportionate share of Option Underwritten
Securities set forth below, to the extent any are purchased.
Number
Underwriter of Initial Underwritten Securities
Total [$]
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The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional Amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
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Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if
any, from _____
Other terms and conditions: Closing date and location:
All of the provisions contained in the document attached as Annex I
entitled "POST PROPERTIES, INC. Common Stock, Preferred Stock and Depositary
Shares--Purchase Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than _____ o'clock P.M. (New York
City time) on _____________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-------------------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
POST PROPERTIES, INC.
By:
--------------------------------
Name:
Title:
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