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Exhibit 4(b)
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of April 8, 1998 (this
"Remarketing Agreement" or this "Agreement"), by and between Post Apartment
Homes, L.P. (the "Operating Partnership") and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch").
WHEREAS, the Operating Partnership proposes to issue
$50,000,000 aggregate principal amount of Remarketed Reset Notes Due April 7,
2009 (the "Notes"), such Notes to be issued under an Indenture dated as of
September 25, 1996 (the "Indenture"), by and between the Operating Partnership
and SunTrust Bank, Atlanta, as trustee (the "Trustee"); and
WHEREAS, the Notes are to be initially offered to the public
through Merrill Lynch; and
WHEREAS, the Operating Partnership has requested that Merrill
Lynch to act as Rate Agent (as defined in Section 2(a) hereof) and as
Remarketing Underwriter (as defined in Section 2(a) hereof) in connection with
the Notes and as such to perform the services described herein; and
WHEREAS, Merrill Lynch is willing to act as Rate Agent and as
Remarketing Underwriter in connection with the Notes and as such to perform such
duties on the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions herein set forth, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not defined
in this Agreement shall have the respective meanings assigned to them in the
Notes or, if not defined therein, in the Indenture relating to the Notes.
Section 2. Appointment and Obligations of Merrill Lynch. (a)
The Operating Partnership hereby appoints Merrill Lynch, and Merrill Lynch
hereby accepts such appointment, (i) as the rate agent (the "Rate Agent") of the
Operating Partnership for the Notes to determine (1) LIBOR and the interest rate
on the Notes for any Quarterly Period, and/or (2) the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate and (ii) as the exclusive remarketing underwriter (the "Remarketing
Underwriter") for the purpose of (x) recommending to the Operating Partnership
the Spread for each Subsequent Spread Period that, in the opinion of the
Remarketing Underwriter, will enable the Remarketing Underwriter to remarket,
for delivery on the Tender Date, tendered Notes at 100% of the principal amount
thereof, (y) if the Operating Partnership and the Remarketing Underwriter agree
on the Spread referred to in (x) above, entering into a remarketing underwriting
agreement (each, a "Remarketing Underwriting Agreement") with the Operating
Partnership, substantially in the form attached hereto as Exhibit A, pursuant to
which the Remarketing Underwriter will agree to purchase the Notes tendered by
the beneficial owners thereof (the "Beneficial Owners")
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and remarket such Notes (each such purchase and remarketing being hereinafter
referred to as a "Remarketing"), and (z) performing such other duties as are
assigned to the Remarketing Underwriter in the Notes and/or the Indenture and/or
the applicable Remarketing Underwriting Agreement.
(b) The Rate Agent hereby agrees to determine LIBOR
on each LIBOR Determination Date in accordance with the following provisions and
the other relevant provisions of the Notes:
(i) LIBOR shall be determined on the basis
of the offered rates for three-month deposits in U.S.
dollars commencing on the second London Business Day
immediately following the applicable LIBOR
Determination Date, which appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on
such LIBOR Determination Date. If no rate appears on
Telerate Page 3750, LIBOR for the applicable LIBOR
Determination Date will be determined in accordance
with the provisions of paragraph (ii) below.
(ii) With respect to a LIBOR Determination
Date on which no rate appears on Telerate Page 3750
as of approximately 11:00 a.m., London time, on the
applicable LIBOR Determination Date, the Rate Agent
shall select four major reference banks in the London
interbank market and shall request the principal
London offices of each such bank to provide it with a
quotation of the rate at which three-month deposits
in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR
Determination Date, are offered by it to prime banks
in the London interbank market as of approximately
11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative
for a single transaction in such market at such time.
If at least two such quotations are provided, LIBOR
for the applicable LIBOR Determination Date will be
the arithmetic mean of such quotations as calculated
by the Rate Agent. If fewer than two quotations are
provided, the Rate Agent, after consultation with the
Operating Partnership, shall select three major banks
in The City of New York and shall request each such
bank to provide it with the rates quoted by such bank
as of approximately 11:00 a.m., New York City time,
on such LIBOR Determination Date for loans in U.S.
dollars to leading European banks, having a
three-month maturity, commencing on the second London
Business Day immediately following such LIBOR
Determination Date and in a principal amount equal to
an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such
market at such time, and LIBOR for such LIBOR
Determination Date shall be the arithmetic mean of
such rates; provided, however, that if the banks
selected as aforesaid by the Rate Agent are not
quoting as mentioned in this sentence, LIBOR for such
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LIBOR Determination Date will be the LIBOR
determined with respect to the immediately preceding
LIBOR Determination Date, or in the case of the first
LIBOR Determination Date, LIBOR for the Initial
Quarterly Period.
(c) The Rate Agent hereby agrees to determine the
yield to maturity on the applicable United States Treasury security that is used
in connection with the determination of the applicable Fixed Rate, and the
ensuing applicable Fixed Rate, in accordance with this Section 2(c): If the
Notes are to be reset to the Fixed Rate Mode, as agreed to by the Operating
Partnership and the Remarketing Underwriter on a Duration/Mode Determination
Date, then the applicable Fixed Rate for the corresponding Subsequent Spread
Period will be determined by 1:00 p.m., New York City time, on the third
Business Day prior to the Commencement Date for the Subsequent Spread Period
(the "Fixed Rate Determination Date"). The Fixed Rate will be a per annum rate
and will be determined by adding (i) the applicable Spread (as agreed to by the
Operating Partnership and the Remarketing Underwriter on the preceding Spread
Determination Date) to (ii) the yield to maturity determined by 1:00 p.m., New
York City time, on the Fixed Rate Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the applicable United States Treasury security,
selected by the Rate Agent after consultation with the Remarketing Underwriter,
as having a maturity comparable to the duration selected for the following
Subsequent Spread Period, which would be used in accordance with customary
financial practice in pricing new issues of corporate debt securities of
comparable maturity to the duration selected for the following Subsequent Spread
Period.
Section 3. Fees and Expenses. The obligations of the Operating
Partnership to pay to the Remarketing Underwriter on each Tender Date the fees
set forth in the applicable Remarketing Underwriting Agreement shall survive the
termination of this Agreement and remain in full force and effect until all such
payments shall have been made in full. The Operating Partnership will pay all
expenses of the Remarketing Underwriter in connection with the Remarketing
Underwriting Agreement, including: (a) the preparation, filing, printing and
delivery of the prospectus, if any, and any amendments or supplements thereto
and any Remarketing Memorandum (as defined in the Remarketing Underwriting
Agreement) in connection with the Remarketing of the Notes; (b) the preparation
and delivery of this Agreement, the Remarketing Underwriting Agreement, the
Indenture and such other documents as may be required in connection with the
Remarketing of the Notes; (c) the fees and disbursements of the Operating
Partnership's accountants, counsel and other advisors or agents (including any
calculation agent or exchange rate agent) and of the fees and disbursements of
the Trustee; (d) the fees charged by nationally recognized statistical rating
organizations for the rating of the Notes; and (e) the preparation, issuance and
delivery to the Depository Trust Company for credit to the account of the
Remarketing Underwriter of any global note registered in the name of Cede & Co.,
as nominee for the Depository Trust Company.
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Section 4. Removal of the Rate Agent and Remarketing
Underwriter. With respect to any Subsequent Spread Period, the Operating
Partnership may, in its absolute discretion, remove the Rate Agent and
Remarketing Underwriter by giving notice to the Rate Agent and Remarketing
Underwriter prior to 3:00 p.m., New York City time, on the Duration/Mode
Determination Date applicable thereto, such removal to be effective upon the
Operating Partnership's appointment of a successor Rate Agent and Remarketing
Underwriter. In such case, the Operating Partnership will use its best efforts
to appoint a successor Rate Agent and Remarketing Underwriter and enter into
such a remarketing agreement with such persons as soon as reasonably
practicable.
Section 5. Dealing in the Notes. Subject to its compliance
with applicable laws and regulations, Merrill Lynch, when acting as a Rate Agent
and Remarketing Underwriter or in its individual or any other capacity, may buy,
sell, hold and deal in any of the Notes. Merrill Lynch may exercise any vote or
join in any action which any Beneficial Owner of Notes may be entitled to
exercise or take pursuant to the Indenture with like effect as if it did not act
in any capacity hereunder. Merrill Lynch, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Operating Partnership as freely as if it did not act
in any capacity hereunder.
Section 6. Current Prospectus. If Merrill Lynch determines,
based upon advice of counsel, that changes in applicable law, regulations or
interpretations of the Securities and Exchange Commission (the "Commission")
make it necessary or advisable to file a new registration statement with the
Commission and/or deliver a current prospectus in connection with a Remarketing,
the Operating Partnership shall file a new registration statement with the
Commission, in a form reasonably acceptable to Merrill Lynch and its counsel,
and furnish a current prospectus to be used by the Remarketing Underwriter in
such Remarketing, as applicable.
Section 7. Representations and Warranties of the Operating
Partnership. The Operating Partnership represents and warrants to Merrill Lynch
as of the date hereof, and as of each Tender Date, as follows:
(a) The Operating Partnership has made all filings
with the Commission that it is required to make under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") (collectively, the
"1934 Act Documents"). Each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and each 1934 Act Document did not, at the time of filing
with the Commission, and will not, as of each Tender Date, as modified
or superseded by any subsequently filed 1934 Act Document on or prior
to such Tender Date, 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, in light of the circumstances
under which they were made, not misleading.
(b) As of the date hereof and at each Tender Date,
any prospectus and any Remarketing Memorandum relating to the Notes and
any amendments and supplements thereto 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.
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(c) The accounting firm that certified the financial
statements and supporting schedules included in, or incorporated by
reference into, the 1934 Act Documents, is an independent public
accountant as required by the Securities Act of 1933, as amended (the
"1933 Act") and the rules and regulations thereunder (the "1933 Act
Regulations").
(d) The consolidated financial statements of Post
Properties, Inc. (the "Company") and the Operating Partnership
included in the Operating Partnership's most recently filed Annual
Report on Form 10-K, Quarterly Reports on Form 10-Q, if any, and
Current Reports on Form 8-K, if any, filed since the latest Annual
Report on Form 10-K, together with the related schedules and notes, as
well as those financial statements, schedules and notes of any other
entity included therein, if any, 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,
shareholders' 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 the 1934 Act Documents present fairly the information
required to be stated therein. The selected financial data and the
summary financial information, if any, included in the Operating
Partnership's 1934 Act Documents 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 1934 Act Documents. The Company's and the Operating
Partnership's ratios of earnings to fixed charges and ratios of
earnings to fixed charges and preferred stock dividends (actual and,
if any, pro forma) included in the 1934 Act Documents 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 1934 Act Documents comply
in all material respects with the, or incorporated by reference into,
applicable requirements of Rule 11-02 of Regulation S-X of the
Commission, and the assumptions used in the preparation thereof are,
in the opinion of the Company, reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein and have been properly applied to
the historical amounts in the compilation of such statements. Other
than the historical financial statements (and schedules) included
therein, no other historical or pro forma financial statements (or
schedules) are required to be included in the 1934 Act Documents.
(e) Since the respective dates as of which
information is given in the 1934 Act Documents, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Operating Partnership and its
Subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of business;
(B) no casualty loss or condemnation or other adverse event with
respect to any of the interests held directly or indirectly in any of
the real properties owned, directly or indirectly, by the Operating
Partnership or its Subsidiaries (the "Properties") has occurred that is
material to
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the Operating Partnership and its Subsidiaries considered as one
enterprise; (C) there have been no transactions entered into by the
Operating Partnership or any Subsidiary, other than those arising in
the ordinary course of business, which are material with respect to the
Operating Partnership and its Subsidiaries considered as one enterprise
or that would result, upon consummation, in any material inaccuracy in
the representations contained in Section 7(a) above; (D) neither the
Operating Partnership nor any Subsidiary has incurred any material
obligation or liability, direct, contingent or otherwise; and (E) there
has been no material change in the short-term debt or long-term debt of
the Operating Partnership.
(f) 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 or as contemplated under this
Remarketing Agreement, the Remarketing Underwriting Agreement and the
other agreements to which it is a party. The Operating Partnership is
duly qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership, leasing
or management of property or the conduct of business, except where the
failure to so qualify or register would not have a Material Adverse
Effect.
(g) Each 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 (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 1934
Act Documents and to enter into and perform its obligations under any
agreements to which it is a party. Each of the Subsidiaries is duly
qualified as a foreign partnership, corporation or other organization
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property, the management of properties by
others or the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect.
(h) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of each
Subsidiary have been validly issued and fully paid and are owned by the
Operating Partnership, the Company, another Subsidiary, and/or certain
affiliated entities as described in the 1934 Act Documents, in each
case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, other than the transfer restrictions set
forth in the Option and Transfer Agreement by and among the Operating
Partnership, Post Services, Inc., John A. Williams and John T. Glover.
Except as otherwise disclosed
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in the 1934 Act Documents, the Operating Partnership owns no direct or
indirect equity interest in any entity other than its Subsidiaries.
(i) The authorized, issued and outstanding
partnership interests of the Operating Partnership are as set forth in
the Operating Partnership's financial statements included in or
incorporated by reference into the 1934 Act Documents (except for
subsequent issuances thereof, if any, contemplated pursuant to
reservations, agreements or employee benefit plans or pursuant to the
exercise of convertible securities or options). Such partnership
interests have been duly authorized and validly issued by the Operating
Partnership and are fully paid and none of such partnership interests
were issued in violation of preemptive or other similar rights of any
securityholder of the Operating Partnership.
(j) This Remarketing Agreement has been duly
authorized, executed and delivered by the Operating Partnership. The
execution and delivery by the Operation Partnership of the Remarketing
Underwriting Agreement has been duly authorized by all necessary
partnership action of the Operating Partnership
(k) The Operating Partnership has full power and
authority to enter into and perform its obligations under this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Operating Partnership and, assuming due
authorization, execution and delivery by the other parties thereto, is
a valid and binding agreement of the Operating Partnership enforceable
against the Operating Partnership in accordance with its terms, except
as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer 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.
(l) The Indenture (A) has been duly authorized,
executed and delivered by the Operating Partnership, and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity
and except the effect on enforceability of (x) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or
a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (y) federal or state law
limiting, delaying or prohibiting the making of payments outside the
United States; and (B) conforms in all material respects to the
description thereof in the Prospectus relating to the initial issuance
of the Notes.
(m) The Notes have been duly authorized by the
Operating Partnership for offer, sale, issuance and delivery pursuant
to the Distribution Agreement and the Terms Agreement and when issued
and authenticated in the manner provided for in the Indenture and
delivered against payment of the consideration therefor specified in
the Terms Agreement, will constitute valid and
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legally binding obligations of the Operating Partnership, entitled to
the benefits of the Indenture enforceable against the Operating
Partnership in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity and except the effect on
enforceability of (a) requirements that a claim with respect to any
Notes payable other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (b) federal or state law limiting, delaying or
prohibiting the making of payments outside the United States. Such
Notes will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the applicable Indenture. Such
Notes rank and will rank on a parity with all unsecured and
unsubordinated indebtedness of the Operating Partnership that is
outstanding on the date hereof and on each Tender Date as herein
contemplated or that may be incurred thereafter, except that such Notes
will be effectively subordinated to the prior claims of each secured
mortgage lender to any specific Property which secures such lender's
mortgage.
(n) Neither the Operating Partnership nor any of its
Subsidiaries is in violation of its charter, by-laws, certificate of
limited partnership, partnership agreement or LLC agreement, as the
case may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it or any of them is a
party or by which any of them may be bound, or to which any of their
property or assets is subject, except for such defaults that could not
result in a Material Adverse Effect. The execution, delivery and
performance of this Remarketing Agreement, the Remarketing Underwriting
Agreement and the Indenture and the execution and delivery of the Notes
and the transactions contemplated herein or therein, including the
issuance, sale and delivery of the Notes and the use of the proceeds
from the sale of the Notes as described in the Prospectus relating to
the initial issuance of the Notes under the caption "Use of Proceeds,"
and compliance by the Operating Partnership with its obligations
hereunder and thereunder, (A) do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Operating Partnership or any of its Subsidiaries pursuant to, any
material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Operating Partnership or any of its Subsidiaries is a party or by which
it or any of them may be bound, or to which any of their properties or
assets is subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or partnership
agreement of the Operating Partnership or any Subsidiary, as the case
may be, or (ii) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government agency or
court, domestic or foreign, having jurisdiction over the Operating
Partnership or any Subsidiary or any of their assets, properties or
operations, except any violation
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that could not result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Operating Partnership or any Subsidiary.
(o) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists or, to the
knowledge of the Operating Partnership, is imminent, which may result
in a Material Adverse Effect.
(p) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Operating Partnership threatened
against or affecting the Operating Partnership, any Subsidiary thereof,
any Property or any officer or director of the foregoing, which is
required to be disclosed in the 1934 Act Documents (other than as
stated therein), or which could reasonably be expected to result in a
Material Adverse Effect, or which might materially and adversely affect
the consummation of this Remarketing Agreement, the Remarketing
Underwriting Agreement, the Indenture, the Notes or the transactions
contemplated herein or therein or the performance by the Operating
Partnership of its obligations under this Remarketing Agreement, the
Remarketing Underwriting Agreement, the Indenture or the Notes. There
is no pending legal or governmental proceedings to which the Operating
Partnership or any Subsidiary is a party or of which any of their
respective assets or properties is subject which could reasonably be
expected to result in a Material Adverse Effect.
(q) There are no contracts or documents of the
Company or the Operating Partnership which are required to be described
in the 1934 Act Documents 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.
(r) No authorization, approval or consent of any
court or governmental authority or agency is necessary or required for
the performance by the Operating Partnership of its obligations under
this Remarketing Agreement, the Remarketing Underwriting Agreement, the
Indenture and the Notes or in connection with the transactions
contemplated under this Remarketing Agreement, the Remarketing
Underwriting Agreement, the Indenture or the Notes or in connection
with the Remarketing of the Notes hereunder, except such as have been
already obtained or as may be required under the 1933 Act, the 1939
Act, the 1933 Act Regulations or state securities or real estate
syndication laws or the rules of the National Association of Securities
Dealers, Inc. ("NASD").
(s) The Operating Partnership and its Subsidiaries
own or possess trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the
Operating Partnership nor any of its Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the
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interest of the Operating Partnership or any of its Subsidiaries
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(t) Each of the Operating Partnership and its
Subsidiaries has all permits, licenses, approvals, consents,
certificates and other authorizations of and from (collectively,
"Governmental Licenses") and has made all declarations and filings with
all appropriate federal, state, local, foreign and other governmental
authorities, all self regulatory organizations and all courts and other
tribunals required for it to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
1934 Act Documents, other than such Governmental Licenses the absence
of which, singly or in the aggregate, could be reasonably likely to
result in a Material Adverse Effect. Neither the Operating Partnership
nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could be reasonably likely to
result in a Material Adverse Effect.
(u) (A) Except as otherwise set forth in the 1934 Act
Documents, the Operating Partnership has good and marketable fee simple
title to the land underlying the Properties 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 mortgages on
such Properties, to utility easements serving such Properties, to liens
of ad valorem taxes not due and payable, 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, title matters
that may be material in character, amount or extent but which do not
materially detract from the value, or interfere with the use of, the
Properties or otherwise materially impair the business operations being
conducted or proposed to be conducted thereon, ownership of cable
television lines and facilities serving one or more of such Properties
by the cable television providers or their affiliates, service marks
and trade names used in connection with such Properties, and ownership
by others of certain items of equipment and other items of personal
property that are not material to the conduct of business operations at
such Properties; (B) the ground lease under which the Operating
Partnership leases the land on which any Property is located is in full
force and effect, and the Operating Partnership is not in default in
respect of any of the terms or provisions of any such lease and the
Operating Partnership has not received notice of the assertion of any
claim by anyone adverse to the Operating Partnership's rights as lessee
under any such lease, or affecting or questioning the Operating
Partnership's right to the continued possession or use of the Property
under any such lease or of a default under any such lease, other than
claims which would not have a Material Adverse Effect; (C) all liens,
charges, encumbrances, claims, or restrictions on or affecting any of
the Properties and the assets of the Operating Partnership or any
Subsidiary which are required to be disclosed in the 1934 Act Documents
are disclosed therein; (D) none of the Operating
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Partnership or any tenant of any of the Properties is in default under
any of the leases pursuant to which the Operating Partnership, as
lessor, leases its Property (and the Operating Partnership does not
know of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such leases)
other than such defaults that would not have a Material Adverse Effect;
(E) except as otherwise set forth in the 1934 Act Documents or to the
extent not material to the Operating Partnership, no person has an
option or right of first refusal to purchase all or part of any
Property or any interest therein; (F) each of the Properties complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Properties), except to the extent disclosed
in the 1934 Act Documents and except for such failures to comply that
would not individually or in the aggregate have a Material Adverse
Effect; (G) the Operating Partnership does not have knowledge of any
pending or threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions that would not have a
Material Adverse Effect; and (H) other than with respect to the
Property known as "Post Woods," the Operating Partnership is the
beneficiary of title insurance on the Properties in amounts that were
commercially reasonable at the time such policies were issued, and in
each case such title insurance is in full force and effect.
(v) The Operating Partnership is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act"), and is not or will not become (as a result of
the transactions contemplated hereby) a "holding company" or a
"subsidiary company" of a "registered holding company," as defined in
the Public Utility Holding Company Act of 1935, as amended.
(w) Except as disclosed in the 1934 Act Documents,
(A) each Property, including, without limitation, the Environment (as
defined below) associated with each Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental Law (as
defined below) applicable to the Properties, except for any Hazardous
Substance that would not have any Material Adverse Effect; (B) neither
the Operating Partnership nor any Subsidiary has caused or suffered to
occur any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no condition exists
on, in or under any Property or, to the knowledge of the Operating
Partnership, any property adjacent to any Property that could result in
the occurrence of liabilities under, or any violations of, any
Environmental Law applicable to such Property, give rise to the
imposition of any Lien (as defined below) under any Environmental Law,
or cause or constitute a health, safety or environmental hazard to any
property, person or entity except any violation which could not be
reasonably likely to result in a Material Adverse Effect; (C) neither
the Operating Partnership nor any Subsidiary is engaged in or intends
to engage in any manufacturing or any similar operations at any
Property that (1) require the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than paints,
stains, cleaning solvents, insecticides, herbicides, or other
substances
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12
that are used in the ordinary course of operating any Property and in
compliance with all applicable Environmental Laws) or (2) require
permits or are otherwise regulated pursuant to any Environmental Law;
(D) except as otherwise set forth in the 1934 Act Documents, neither
the Operating Partnership nor any Subsidiary has received any notice of
a claim under or pursuant to any Environmental Law applicable to a
Property or under common law pertaining to Hazardous Substances on any
Property or pertaining to other property at which Hazardous Substances
generated at any Property have come to be located which could be
reasonably likely to result in a Material Adverse Effect; (E) except as
otherwise set forth in the 1934 Act Documents, neither the Operating
Partnership nor any Subsidiary has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the date hereof
which could reasonably be likely to result in a Material Adverse
Effect; and (F) except as otherwise set forth in the 1934 Act
Documents, no Property (1) is included or, to the knowledge of the
Operating Partnership or any Subsidiary, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below)
by the United States Environmental Protection Agency (the "EPA") or on
the Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA as a potential CERCLA
removal, remedial or response site or (2) is included or proposed for
inclusion on, any similar list of potentially contaminated sites
pursuant to any other applicable Environmental Law nor has the
Operating Partnership, or any subsidiary received any written notice
from the EPA or any other Governmental Authority proposing the
inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including, without limitation, oil, petroleum, or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified, listed or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. ss. 172.101, as the same may now or hereafter be amended, or in
the EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air; "Environmental Law"
shall mean the Comprehensive Environmental Response, Compensation and
Liability Act, as amended (42 U.S.C. ss. 9601, et seq.) ("CERCLA"), the
Resource Conservation Recovery Act, as amended (42 U.S.C. ss. 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et seq.), the
Clean Water Act, as amended (33 U.S.C. ss. 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss. 2601 et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss.
651, et seq.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. ss. 1801, et seq.), together with all rules, regulations and
orders promulgated thereunder and all other federal, state and
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13
local laws, ordinances, rules, regulations and orders relating to the
protection of the environment or of human health from environmental
effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any material mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(x) Each of the Operating Partnership and its
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged.
(y) The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income Security
Act of 1974, as amended.
(z) Except as otherwise set forth in the 1934 Act
Documents the mortgages and deeds of trust encumbering the properties
and assets are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the Operating
Partnership or any of its Subsidiaries; except as otherwise disclosed
in the 1934 Act Documents, none of the Operating Partnership or any of
its Subsidiaries holds participating interests in such mortgages and
deeds of trust.
(aa) The partnership agreement of the Operating
Partnership (the "Operating Partnership Agreement") has been duly
authorized, executed and delivered by the parties thereto and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of general
applicability; and the execution, delivery and performance of the
Operating Partnership Agreement did not, at the time of execution and
delivery, and does not constitute a breach of, or default under any
material contract, lease or other instrument to which the Operating
Partnership is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court decree.
(bb) 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 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.
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14
(cc) 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.
(dd) Each of the Company, the Operating Partnership
and its Subsidiaries has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which the failure to file would not have a Material Adverse
Effect) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except, in all cases, for any such
tax, assessment, fine or penalty that is being contested in good faith.
(ee) The Notes are rated Baa1 by Moody's Investors
Service, Inc. and BBB+ by Standard & Poor's Ratings Service.
(ff) Any certificate signed by any officer of the
Operating Partnership (or any officer of the general partner of the
Operating Partnership) or any of its Subsidiaries and delivered to any
Underwriter or to counsel for the Underwriter in connection with the
offering of Notes shall be deemed a representation and warranty by the
Operating Partnership to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Closing Date subsequent thereto.
References in the foregoing representations and warranties to
the 1934 Act Documents shall be deemed to refer to the registration statement,
prospectus and Remarketing Memorandum, if any, in each case including the
documents incorporated by reference therein, if any of such documents are
required pursuant to Section 6 hereof.
Section 8. Conditions to the Remarketing Underwriter's
Obligations. The obligations of the Remarketing Underwriter to purchase and
remarket the Notes shall be subject to the terms and conditions of the
applicable Remarketing Underwriting Agreement.
Section 9. Indemnification.
(a) Indemnification. The Operating Partnership agrees
to indemnify and hold harmless the Remarketing Underwriter and each
person, if any, who controls the Remarketing Underwriter within the
meaning of Section 20 of the 1934 Act and any director, officer,
employee or affiliate thereof, as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of (A)
the failure to have an effective registration statement under the 1933
Act, relating to the Notes, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Operating
Partnership failed to provide the Remarketing Underwriter with a
prospectus for delivery, or (B) any untrue statement or alleged untrue
statement of a
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15
material fact contained in the registration statement or Remarketing
Memorandum, if any, or any amendment thereto (including any documents
incorporated by reference therein), or (C) the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or (D) any
violation by the Operating Partnership of, or any failure by the
Operating Partnership to perform any of its obligations under, this
Agreement or (E) the acts or omissions of the Rate Agent in connection
with its duties and obligations hereunder except those that are finally
judicially determined to be due to its gross negligence or willful
misconduct;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of, or
based upon, any of items (A) through (E) of clause (i) above; provided
that (subject to Section 9(d) hereof) any such settlement is effected
with the written consent of the Operating Partnership, which consent
shall not be unreasonably withheld; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of
counsel chosen by the Remarketing Underwriter), 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 arising out of, or
based upon, any of items (A) through (E) of clause (i) above to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Operating Partnership by
the Remarketing Underwriter expressly for use in the Remarketing Memorandum or
registration statement (or any amendment thereto), if applicable.
(b) Indemnification of Operating Partnership,
Directors and Officers. The Remarketing Underwriter agrees to indemnify
and hold harmless the Operating Partnership, its directors, officers,
employees and affiliates, and each person, if any, who controls the
Operating Partnership within the meaning of Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 9(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Remarketing
Memorandum or registration statement (or any amendment thereto), if
applicable, in reliance upon and in conformity with written information
furnished to the Operating Partnership by the Remarketing Underwriter
expressly for use in such Remarketing Memorandum or registration
statement (or any amendment thereto).
(c) Actions Against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought
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16
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 9(a) above, counsel to the
indemnified parties shall be selected by the Remarketing Underwriter.
In the case of parties indemnified pursuant to Section 9(b) above,
counsel to the indemnified parties shall be selected by the Operating
Partnership. An indemnifying party may participate at its own expense
in the defense of 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 one 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 9 or
10 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to
Reimburse. 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
9(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.
(e) Continuation of Indemnification. The indemnity
agreements contained in this Section 9 shall remain operative and in
full force and effect, regardless of any investigation made by or on
behalf of the Remarketing Underwriter, and shall survive the
termination or cancellation of this Agreement and the remarketing of
any Notes hereunder.
Section 10. Contribution. If the indemnification provided for
in Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion
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17
as is appropriate to reflect the relative benefits received by the Operating
Partnership, on the one hand, and the Remarketing Underwriter, on the other
hand, from the remarketing of the Notes pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Operating
Partnership, on the one hand, and the Remarketing Underwriter, on the other
hand, in connection with the acts, failures to act, statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership,
on the one hand, and the Remarketing Underwriter, on the other hand, in
connection with the remarketing of the Notes pursuant to this Agreement shall be
deemed to be in the same respective proportions as (i) the aggregate principal
amount of the Notes and (ii) the aggregate positive difference, if any, between
the price at which the Notes are sold by the Remarketing Underwriter in the
remarketing and the price paid by the Remarketing Underwriter for the Notes
tendered on a Tender Date.
The relative fault of the Operating Partnership, on the one
hand, and the Remarketing Underwriter, on the other hand, shall be determined by
reference to, among other things, the responsibility hereunder of the applicable
party for any act or failure to act relating to the losses, liabilities, claims,
damages or expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact contained
in any Remarketing Memorandum or registration statement (as amended), if
applicable, or the omission or alleged omission to state a material fact
therefrom, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Operating Partnership or by the Remarketing
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Remarketing Underwriter
agree that it would not be just and equitable if contribution pursuant to this
Section 10 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 10. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 10 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 applicable untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 10, the
Remarketing Underwriter gent shall not be required to contribute any amount in
excess of the amount by which the total price at which the Notes remarketed by
it and resold to the public were sold to the public exceeds the amount of any
damages which the Remarketing Underwriter has otherwise been required to pay by
reason of any act or failure to act for which it is responsible hereunder or any
untrue or alleged untrue statement or omission or alleged omission.
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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 10, each person, if any, who
controls the Remarketing 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 the Remarketing Underwriter, and each person, if any, who
controls the Operating Partnership within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Operating Partnership.
Section 11. Termination of this Remarketing Agreement. Subject
to Section 3 hereof relating to the payment of fees and expenses, this Agreement
(i) shall terminate as to the Rate Agent on the effective date of the removal of
such Rate Agent pursuant to Section 4 hereof, and (ii) shall terminate as to the
Remarketing Underwriter on the effective date of the removal of such Remarketing
Underwriter pursuant to Section 4 hereof.
Section 12. Rate Agent's and Remarketing Underwriter's
Performance; Duty of Care. The duties and obligations of the Rate Agent and
Remarketing Underwriter hereunder shall be determined solely by the express
provisions of this Remarketing Agreement and the Notes and the Indenture and, in
the case of the Remarketing Underwriter, the applicable Remarketing Underwriting
Agreement.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the first day thereafter on which no Notes
are outstanding.
Section 15. Successors and Assigns. The rights and obligations
of the Operating Partnership hereunder may not be assigned or delegated to any
other person without the prior written consent of Merrill Lynch. The rights and
obligations of Merrill Lynch hereunder may not be assigned or delegated to any
other person without the prior written consent of the Operating Partnership.
This Agreement shall inure to the benefit of and be binding upon the Operating
Partnership and Merrill Lynch and their respective successors and assigns. The
terms "successors" and "assigns" shall not include any purchaser of any Notes
merely because of such purchase.
Section 16. Headings. Section headings have been inserted in
this Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be used
in the interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any
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19
constitution, statute, rule or public policy or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstances or
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 18. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
Section 19. Amendments. This Agreement may be amended by
any instrument in writing signed by each of the parties hereto.
Section 20. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication or by telephone and confirmed in writing. All written notices
shall be deemed to be validly given or made, if delivered by hand, when so
delivered, or if mailed, when mailed registered or certified mail, return
receipt requested and postage prepaid. All notices by telecommunication
(including telephone) shall be deemed to be validly given or made when received.
All such notices, requests, consents or other communications shall be addressed
as follows: if to the Operating Partnership, to Post Apartment Homes, L.P., 3350
Cumberland Circle, N.W., Suite 2000, Atlanta, Georgia 30339, Attention: John T.
Glover, President; and if to Merrill Lynch, to Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Merrill Lynch World Headquarters, World Financial Center,
North Tower, New York, New York 10281-1209, Attention: Debt Syndicate, or to
such other address as either of the above shall specify to the other in writing.
Section 21. Benefit. Nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon or given any person
other than the parties hereto any remedy or claim under or by reason of this
Agreement or any term, covenant or condition hereof, all of which shall be for
the sole and exclusive benefit of the parties.
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IN WITNESS WHEREOF, each of the Operating Partnership and
Merrill Lynch has caused this Agreement to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
POST APARTMENT HOMES, L.P.
By: Post GP Holdings, Inc., it general partner
By:
--------------------------------------
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------------------
Name:
Title:
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