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EXHIBIT 4(c)
REMARKETING UNDERWRITING AGREEMENT
REMARKETING UNDERWRITING AGREEMENT, dated as of , (this
"Agreement") by and between Post Apartment Homes, L.P. (the "Operating
Partnership") and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Remarketing Underwriter"). The Remarketing Underwriter hereby
agrees to purchase the Notes described below (the "Notes") that have been
tendered by the holders thereof for sale on _________________ (the "Tender
Date").
IF NO NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED,
INCLUDE THE FOLLOWING: [It is acknowledged and agreed that the Notes need not be
further registered under the Securities Act of 1933, as amended (the "1933
Act"), and that, in connection with the remarketing of the Notes by the
Remarketing Underwriter in accordance with the terms of the Remarketing
Agreement dated April 8, 1998, no prospectus meeting the requirements of Section
10 of the 1933 Act need be delivered or filed pursuant to Rule 424 under the
1933 Act.
It is understood that the Remarketing Underwriter will deliver
to purchasers and prospective purchasers, in connection with the remarketing,
one or more forms of written communication describing the terms of the Notes
(each, a "Remarketing Memorandum"), the form of each of which shall be delivered
to Post Apartment Homes, L.P. (the "Operating Partnership") not less than two
Business Days prior to its use. Such Remarketing Memorandum shall be subject to
the approval of the Operating Partnership prior to its use by the Remarketing
Underwriter, which approval shall not be unreasonably withheld or delayed.
The Remarketing Underwriter shall offer to purchase Notes and
shall purchase validly tendered Notes on the Tender Date in accordance with all
applicable laws and regulations and interpretations of the Securities and
Exchange Commission.
The following hereby are incorporated into this Agreement in
their entirety and made applicable to the obligations of the Remarketing
Underwriter to the extent applicable to any remarketing of the Notes, except as
explicitly amended hereby:
(A) Section 4(k) of the attached Distribution Agreement (which
dates referred to therein shall be the date of the Remarketing Underwriting
Agreement and the Representation Date for the relevant Tender Date);
(B) Sections 6(a) and (e) of the attached Distribution
Agreement;
(C) The representations and warranties made pursuant to the
above-referenced Remarketing Agreement (other than paragraphs 7(l) and 7(m));
(D) Section 11 of the attached Distribution Agreement; and
(E) Section 12 of the attached Distribution Agreement (except
that Section 12 is amended to allow for the termination of this Agreement by the
Remarketing Underwriter if (i) the Operating Partnership's representations and
warranties therein are not accurate and correct and (ii) the Remarketing
Underwriter does not purchase all tendered Notes on the relevant Tender Date).
All references contained in the attached Distribution Agreement to the "Agent"
or "Agents" shall be deemed to refer to the Remarketing Underwriter. All
references to the "Notes"
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shall be deemed to refer to the Notes described below. All references to the
"Representation Date" shall be deemed to refer to the Tender Date. The terms
"Registration Statement" and "Prospectus" shall be deemed to refer to each such
document as amended or supplemented to the date hereof and the Tender Date,
including the documents included in or incorporated by reference into such
document.]
If a New Registration Statement or Prospectus is required,
include the following: [It is understood that a new registration statement or
new prospectus is being filed by the Operating Partnership in connection with
the remarketing of the Notes (the "New Registration Statement" and/or New
Prospectus"). In connection therewith and with the remarketing of the Notes,
the attached Distribution Agreement hereby is incorporated into this Agreement
in its entirety (except as modified below) and the Remarketing Underwriter shall
be deemed to be acting as "principal" thereunder. All references in such
Distribution Agreement to (i) the "Agent" or "Agents" shall be deemed to refer
to the Remarketing Underwriter, (ii) the Distribution Agreement shall be deemed
to refer to the Remarketing Underwriting Agreement and (iii) the "Settlement
Date" or the "Representation Date" shall be deemed to refer to the Tender Date.
To the extent the provisions of such Distribution Agreement refer to the
"Prospectus" or the "Registration Statement," such references shall be deemed to
refer to the New Registration Statement or the New Prospectus, as applicable,
including all documents incorporated by reference therein. For the purposes of
Section 10 of the attached Distribution Agreement, the relative benefit 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 the
aggregate public offering price of the Notes sold in connection with the
remarketing bears to the remarketing fee received by the Remarketing Underwriter
pursuant to this Agreement. Section 12 of the attached Distribution Agreement
shall be amended to allow for the termination of this Agreement by the
Remarketing Underwriter if (i) the Operating Partnership's representations and
warranties therein are not accurate and correct in all material respects or (ii)
the Remarketing Underwriter does not purchase all tendered Notes on the relevant
Tender Date].
All capitalized terms not otherwise defined in this Agreement
have the respective meanings assigned thereto in the Notes, the form of which is
attached hereto.
Operating Partnership: Post Apartment Homes, L.P.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, Georgia 30339
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Remarketing Underwriter and Address: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters World Financial
Center, North Tower 26th Floor
New York, New York 10281-1209
Title of Notes: Remarketed Reset Notes Due April 7, 2009
Principal Amount of Notes to be Purchased:
Title of Indenture: Indenture dated as of September 25, 1996, by and
between the Operating Partnership and the Trustee
Trustee: SunTrust Bank, Atlanta
Current Ratings: Moody's Investors Service, Inc.: Baa1 Standard &
Poor's Ratings Services: BBB+
CERTAIN TERMS OF THE NOTES
Stated Maturity: April 7, 2009
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Date:
Tender Date:
New Interest Rate: As determined by application of the provisions set
forth in the attached form of the Notes on the
LIBOR Determination Date or the Fixed Rate
Determination Date, as applicable.
Spread:
Interest Payment Dates:
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Subsequent Spread Period:
Redemption Provisions: Redeemable as set forth in the attached Pricing
Supplement dated March 31, 1998.
Beneficial Owner Tender Provisions: As set forth in the attached Pricing Supplement
dated March 31, 1998. In the event that the
Remarketing Underwriter fails to purchase all Notes
validly tendered for purchase on the Tender Date,
then the Remarketing Underwriter shall promptly
notify the Operating Partnership and the Trustee of
such failure.
Shorter Subsequent Spread Period: In the event that (A) the Remarketing Underwriter
fails to purchase all Notes validly tendered for
purchase on the Tender Date for any reason and
(B) the Operating Partnership has not given notice
of redemption of all of the Notes then outstanding
in accordance with the provisions described in the
attached form of the Notes, then the Subsequent
Spread Period shall be a period of one year, which
Subsequent Spread Period shall be deemed to have
commenced upon the Commencement Date that coincides
with the Tender Date.
Legal Opinion: If required to be delivered pursuant to this
Agreement, the opinion required to be delivered
pursuant to Section 6(b)(iv) of the attached
Distribution Agreement shall be modified to read as
follows "(iv) The Notes have been duly authorized; a
single global Note registered in the name of CEDE &
Co., a nominee of The Depository Trust Company
("DTC"), has been duly authenticated in accordance
with the provisions of the Indenture, paid for and
delivered to DTC, and constitutes a valid and binding
obligation of the Operating Partnership; and the
Underwriter will acquire the rights of a bona fide
purchaser (as such terms are defined
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in the Uniform Commercial Code as in effect in the State
of New York (the "UCC")) in any portion of the Notes
transferred to the Underwriter by a prior owner
thereof as recorded on the books of DTC, provided
that (i) the portion of the Notes transferred is an
authorized denomination of the Notes, (ii) the
transfer is recorded on the books of DTC by a debit
to the transferor's account with DTC and a credit
to the Underwriter's account with DTC, (iii) the
Underwriter makes payment to such transferor of
value for such transfer and (iv) the Underwriter
purchases such interest in good faith and without
notice of any adverse claim, within the meaning of
the UCC."
If required to be delivered pursuant to this
Remarketing Underwriting Agreement, the opinion
required to be delivered pursuant to Section 6(c) of
the attached Distribution Agreement may be delivered
by any counsel designated by the Remarketing
Underwriter and reasonably acceptable to the
Operating Partnership.
Form of Notes: Global certificate registered in the name of the
nominee, which currently is CEDE & Co., of the
depository of the Notes, which is DTC. The
beneficial owners of the Notes ("Beneficial
Owners") are not entitled to receive definitive
certificates representing their Notes, except under
limited circumstances. A Beneficial Owner's
ownership of a Note currently is recorded on or
through the records of the brokerage firm or other
entity that is a participant in DTC and that
maintains such Beneficial Owner's account.
Purchase Price: 100% of the principal amount of the Notes. Payable
to DTC for the Beneficial Owners of Tendered Notes.
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Remarketing Fee: 0.075% of the principal amount of the Notes
outstanding on each Tender Date multiplied by the
number of years remaining in the Stated Maturity,
not to exceed 0.65% for any one additional Spread
Period.
Closing: Hogan & Hartson L.L.P., 555 13th Street, N.W.,
Washington, D.C. 20004, at 9:00 a.m., New York
City time, on the Tender Date.
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The foregoing terms are hereby confirmed and agreed to as of
this ___ day of ____________.
POST APARTMENT HOMES, L.P.
By: POST GP HOLDINGS, INC.,
its general partner
By:
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Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
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Name:
Title:
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